exv10w1






Exhibit 10.1




Execution Version






PIPER JAFFRAY & CO.




Issuer



THE BANK OF NEW YORK MELLON

Trustee




 






INDENTURE




Dated as of December 28, 2009



 





SECURED COMMERCIAL PAPER NOTES






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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Article I.       DEFINITIONS AND CONSTRUCTION
	 	 	2	 
	Section 1.01       Definitions
	 	 	2	 
	Section 1.02       Rules of Construction
	 	 	7	 
	Section 1.03       Supplements Controlling
	 	 	8	 
	Article II
	 	 	9	 
	THE SERIES A CP NOTES
	 	 	9	 
	Section 2.01       Form Generally
	 	 	9	 
	Section 2.02       Denominations
	 	 	9	 
	Section 2.03       Execution, Authentication and Delivery
	 	 	9	 
	Section 2.04       Authenticating Agent
	 	 	10	 
	Section 2.05       Registration of and Limitations on Transfer and Exchange of Series A CP
Notes               
	 	 	11	 
	Section 2.06       Mutilated, Destroyed, Lost or Stolen Series A CP Notes
	 	 	14	 
	Section 2.07       Persons Deemed Owners
	 	 	15	 
	Section 2.08       Appointment of Paying Agent
	 	 	15	 
	Section 2.09       Access to List of Series A CP Noteholders’ Names and Addresses
	 	 	15	 
	Section 2.10       Cancellation
	 	 	15	 
	Section 2.11.       Book Entry Series A CP Notes
	 	 	16	 
	Section 2.12       Notices to Clearing Agency
	 	 	17	 
	Section 2.13.       Definitive Notes
	 	 	17	 
	Section 2.14       Series A CP Note Issuance Procedures
	 	 	17	 
	Section 2.15       Payment of Interest and Principal; Optional Redemption
	 	 	20	 
	Section 2.16       CUSIP Numbers
	 	 	21	 
	Article III.       REPRESENTATIONS AND COVENANTS OF ISSUER
	 	 	22	 
	Section 3.01       Representations and Warranties of the Issuer—General. The Issuer hereby
represents and warrants to the Trustee and the Series A CP Noteholders, as of the Closing
Date:                  
	 	 	22	 
	Section 3.02       General Covenants of the Issuer
	 	 	23	 
	Section 3.03       Collateral Maintenance; Substitution; Trustee Daily Collateral Reports
	 	 	24	 
	Section 3.04       Money for Series A CP Note Payments to Be Held in Trust
	 	 	25	 
	Section 3.05       Unclaimed Funds
	 	 	26	 
	Section 3.06       Successor Substituted
	 	 	26	 
	Section 3.07       Authorized Representative
	 	 	26	 
	Article IV.       SATISFACTION AND DISCHARGE
	 	 	27	 
	Section 4.01       Satisfaction and Discharge
	 	 	27	 
	Section 4.02       Application of Trust Money
	 	 	28	 
	Article V.       DEFAULTS AND REMEDIES
	 	 	28	 
	Section 5.02       Acceleration of Maturity; Rescission and Annulment
	 	 	29	 
	Section 5.03       Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	30	 
	Section 5.04       Remedies
	 	 	31	 
	Section 5.05       Optional Preservation of Trust Assets
	 	 	32	 
	Section 5.06       Trustee May Enforce Claims Without Possession of Notes
	 	 	32	 
	Section 5.07       Limitation on Suits
	 	 	33	 






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	Section 5.08       Unconditional Rights of Series A CP Noteholders to Receive Principal and
Interest
	 	 	33	 
	Section 5.09       Restoration of Rights and Remedies
	 	 	33	 
	Section 5.10       Rights and Remedies Cumulative
	 	 	34	 
	Section 5.11       Delay or Omission Not Waiver
	 	 	34	 
	Section 5.12       Rights of Series A CP Noteholders to Direct Trustee
	 	 	34	 
	Section 5.13       Waiver of Past Defaults
	 	 	34	 
	Section 5.14       Undertaking for Costs
	 	 	35	 
	Section 5.15       Waiver of Stay or Extension Laws
	 	 	35	 
	Section 5.16       Sale of Trust Assets
	 	 	35	 
	Section 5.17       Action on Notes
	 	 	36	 
	Section 5.18       Limited Rights of Certain Series A CP Noteholders
	 	 	36	 
	Article VI.       THE TRUSTEE
	 	 	37	 
	Section 6.01       Duties of Trustee
	 	 	37	 
	Section 6.02       Notice of Event of Default
	 	 	38	 
	Section 6.03       Rights of Trustee
	 	 	38	 
	Section 6.04       Not Responsible for Recitals or Issuance of Notes
	 	 	40	 
	Section 6.05       May Hold Notes
	 	 	40	 
	Section 6.06       Money Held in Trust
	 	 	40	 
	Section 6.07       Compensation, Reimbursement and Indemnification
	 	 	40	 
	Section 6.08       Replacement of Trustee
	 	 	41	 
	Section 6.09       Successor Trustee by Merger
	 	 	42	 
	Section 6.10       Appointment of Co-Trustee or Separate Trustee
	 	 	42	 
	Section 6.11       Eligibility; Disqualification
	 	 	43	 
	Section 6.12       Representations and Covenants of Trustee
	 	 	43	 
	Section 6.13       Trustee as Paying Agent, Registrar and Authenticating Agent
	 	 	44	 
	Section 6.14       Liability in Agent Capacity
	 	 	44	 
	Article VII.       SERIES A CP NOTEHOLDERS’ LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
	 	 	45	 
	Section 7.01       Issuer to Furnish Trustee Names and Addresses of Series A CP Noteholders
	 	 	45	 
	Section 7.02       Preservation of Information; Communications to Series A CP Noteholders
	 	 	45	 
	Article VIII.       ACCOUNTS, ACCOUNTING AND RELEASES
	 	 	46	 
	Section 8.01       Collection of Money
	 	 	46	 
	Section 8.02       Distributions
	 	 	46	 
	Section 8.03       Release of Trust Assets, Etc
	 	 	46	 
	Section 8.05       Establishment of Note Account
	 	 	46	 
	Article IX.       SUPPLEMENTAL INDENTURES
	 	 	46	 
	Section 9.01       Supplemental Indentures Without Consent of Series A CP Noteholders
	 	 	46	 
	Section 9.02       Supplemental Indentures with Consent of Series A CP Noteholders
	 	 	47	 
	Section 9.03       Execution of Supplemental Indentures
	 	 	49	 
	Section 9.04       Effect of Supplemental Indenture
	 	 	49	 
	Section 9.05       Reference in Series A CP Notes to Supplemental Indentures
	 	 	49	 
	Article X.       MISCELLANEOUS
	 	 	49	 
	Section 10.01       Form of Documents Delivered to Trustee
	 	 	49	 
	Section 10.02       Acts of Series A CP Noteholders
	 	 	50	 
	Section 10.03       Notices, Etc. to Trustee, Issuer and Issuer
	 	 	51	 






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	Section 10.04       Notices to Series A CP Noteholders; Waiver
	 	 	51	 
	Section 10.05       Alternate Payment and Notice Provisions
	 	 	52	 
	Section 10.06       Effect of Headings and Table of Contents
	 	 	52	 
	Section 10.07       Successors and Assigns
	 	 	52	 
	Section 10.08       Separability
	 	 	52	 
	Section 10.09       Benefits of Indenture
	 	 	52	 
	Section 10.10       Legal Holidays
	 	 	53	 
	Section 10.11       Governing Law
	 	 	53	 
	Section 10.12       Counterparts
	 	 	53	 
	Section 10.13       Issuer Obligation
	 	 	53	 
	Section 10.14       No Petition
	 	 	53	 
	Section 10.15       Force Majeure
	 	 	54	 
	EXHIBIT A — FORM OF MASTER SERIES A CP NOTE
	 	 	56	 
	EXHIBIT B — FORM OF INVESTOR REPRESENTATION LETTER FOR SERIES A CP NOTES
	 	 	57	 
	EXHIBIT C — FORM OF NOTICE OF EXCLUSIVE CONTROL
	 	 	60	 
	EXHIBIT D — FORM OF ISSUANCE NOTICE
	 	 	61	 
	EXHIBIT E — FORM OF DAILY COLLATERAL REPORT
	 	 	63	 
	EXHIBIT F — FORM OF COLLATERAL ACCOUNT CONTROL AGREEMENT
	 	 	64	 







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               This INDENTURE is dated as of December 28, 2009 (as amended, supplemented or restated from
time to time, this “Indenture”), between PIPER JAFFRAY & CO., a corporation organized under
the laws of the State of Delaware (the “Issuer”), and THE BANK OF NEW YORK MELLON, a New
York banking corporation, as indenture trustee (the “Trustee”).



WITNESSETH:




               WHEREAS, the Issuer and the Trustee are executing and delivering this Indenture in order to
provide for the issuance by the Issuer of the Series A CP Notes; and



               WHEREAS, Trustee and Issuer each have executed a Letter of Representations (the “Letter of
Representations”, which term shall include the procedures referred to therein) with the Issuer and
the initial Clearing Agency, The Depository Trust Company (“DTC”) and a Certificate Agreement (the
“Certificate Agreement”) with DTC which establish, among other things, the procedures to be
followed by Trustee in connection with the issuance and custody of Book-Entry Series A CP Notes.



               WHEREAS, The Bank of New York Mellon, as Securities Intermediary and, in its capacity as
Trustee hereunder, as Secured Party, and Issuer, as Pledgor, each have executed a Collateral
Account Control Agreement, dated as of the date hereof, whereby the Securities Intermediary has
agreed to establish and maintain the Collateral Account (as defined herein).



               NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:



GRANTING CLAUSES




               To secure payment and performance of the Series A CP Notes and other obligations of the Issuer
under this Indenture, the Issuer hereby unconditionally grants, transfers, assigns, sets over,
pledges and conveys to the Trustee, as Trustee and Secured Party, for the exclusive benefit of the
Holders of the Series A CP Notes, subject to the terms of this Indenture and the Collateral Account
Control Agreement (pursuant to which the Securities Intermediary will take instructions from the
Pledgor or the Secured Party, as specified therein) a continuing security interest in and a lien on
all of the Issuer’s right, title and interest in and to all assets held by the Securities
Intermediary pursuant to the Collateral Account Control Agreement, including without limitation (a)
all investment property held in the Collateral Account whether now or hereafter existing, including
all payments of principal and interest received, collected or otherwise recovered on such
investment property and all other proceeds received in respect of such investment property, (b) all
cash, instruments or other property that are held or required to be deposited in the Collateral
Account, including all investments made with funds in the Collateral Account, and (c) all proceeds
of the conversion, voluntary or involuntary, of any of the foregoing into cash or other liquid
assets, including, without limitation, all insurance proceeds and condemnation awards
(collectively, the “Collateral”).



               The foregoing Grants are made in trust to secure the Series A CP Notes equally and ratably
without prejudice, priority or distinction between any Series A CP Note and any other Series A CP
Notes, except as expressly provided in this Indenture and to secure (i) the



 









 




payment of all amounts due on the Series A CP Notes in accordance with their terms, (ii) the
payment of all other sums payable under this Indenture and (iii) compliance with the provisions of
this Indenture, all as provided herein (the “Secured Obligations”).




               The Trustee acknowledges such Grants, accepts the trusts hereunder in accordance with the
provisions of this Indenture and agrees to perform the duties herein required to the end that the
interests of the Holders of the Series A CP Notes may be adequately and effectively protected.



Article I.




DEFINITIONS AND CONSTRUCTION


Section 1.01 Definitions.




          As used in this Indenture and unless otherwise defined herein, capitalized terms used in this
Indenture shall have the meanings assigned to them in the Collateral Account Control Agreement, the
form of which is attached hereto as Exhibit [F].




          “Act” or “Act of the Series A CP Noteholders” has the meaning specified in Section 10.02 of
this Indenture.




          “Affiliate” means, with respect to a particular Person, (a) any Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person, or
(b) any Person who is a director or officer or general partner (i) of such Person, (ii) of any
subsidiary of such Person, or (iii) of any Person described in clause (a) above. For purposes of
this definition, control of a Person shall mean the power, direct or indirect, (i) to vote 5% or
more of the securities having ordinary voting power to elect the directors of such Person, or (ii)
to direct or cause the direction of the management and policies of such Person whether by contract
or otherwise.




          “Authorized Representative” has the meaning specified in Section 3.07 of this Indenture.




          “Basic Documents” means this Trust Indenture and the Collateral Account Control Agreement.




          “Book Entry Series A CP Notes” means beneficial interests in Notes designated as “Book Entry
Series A CP Notes” in this Indenture, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 2.11; provided, that after the
occurrence of a condition whereupon Definitive Notes are to be issued to Note Owners, such Book
Entry Series A CP Notes shall no longer be “Book Entry Series A CP Notes.”




          “Business Day” means any day on which the Trustee and the appropriate depositories are open
for business.




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          “Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section
17A of the Exchange Act, as amended. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.




          “Clearing Agency Participant” means a broker, dealer, bank, other financial institution or
other Person for whom from time to time a Clearing Agency effects book entry transfers and pledges
of securities deposited with the Clearing Agency.




          “Closing Date” means each date of issuance of Series A CP Notes.




          “Collateral” has the meaning specified in the Granting Clauses herein.




          “Collateral Account” means custodial account number PJH006, established and maintained by the
Securities Intermediary under the Collateral Account Control Agreement.




          “Collateral Account Control Agreement” means, the Collateral Account Control Agreement, dated
as of December 28, 2009, among The Bank of New York Mellon as Trustee, as Secured Party and, The
Bank of New York Mellon, as Securities Intermediary, and the Issuer, as Pledgor, as the same may be
amended, supplemented, restated or otherwise modified from time to time




          “Corporate Trust Office” means the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the date of the execution
of this Indenture is located at



The Bank of New York Mellon

101 Barclay Street, Floor 7 West

New York, New York, New York, 10286

Attention:     Corporate Trust Administration

                     Dealing and Trading.




          “Daily Collateral Report” means a report provided by the Trustee pursuant to Section 3.03,
containing the information required in Exhibit E hereto.




          “Definitive Series A CP Note” means a Series A CP Note in the form of a registered, physical
certificated security issued or endorsed directly to the Holder thereof.




          “Designated Officer” shall mean an officer of the Trustee charged with the administration of
this Indenture.




          “Dollars”, “$” or “U.S. $” means United States dollars and, where the context requires, means
Dollars paid and/or held in the form of cash monies or dollar-denominated commercial deposit
accounts.




          “DTC” has the meaning specified in the Preamble to this Indenture.




          “Eligible Collateral” has the meaning specified in Article 1 and Schedule I of the Collateral
Account Control Agreement.







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          “Event of Default” has the meaning specified in Section 5.01 of this Indenture.




          “Interest Accrual Period” means, with respect to any interest-bearing Series A CP Notes, on
any Interest Payment Date, the period from and including the preceding Interest Payment Date (or,
in the case of the first Payment Date occurring after the related Closing Date, such Closing Date)
to and excluding such Payment Date, in each case calculated on the basis of actual number of days
over 360 days, subject to Section 10.10.




          “Interest Payment Date” means the fifteenth day of each calendar month or, if such fifteenth
day is not a Business Day, the next succeeding Business Day, commencing January 2010.




          “Investment Company Act” means the Investment Company Act of 1940, as amended from time to
time.




          “Issuance Notice” means the notice required to be provided by the Issuer to the Trustee
pursuant to Section 2.14(c) of this Indenture.




          “Issuer” means Piper Jaffray & Co., a Delaware corporation.




          “Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, participation or equity interest, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as any of the
foregoing, and includes the filing of any financing statement under the UCC (other than any such
financing statement filed for informational purposes only) or comparable law of any jurisdiction to
evidence any of the foregoing.




          “Majority
of Series A CP Noteholders” or “Majority Series A CP Noteholders”, means the Holders
of Series A CP Notes evidencing in the aggregate more than 50% of the Outstanding amount of the
Series A CP Notes.




          “Margin Percentage” shall have the meaning specified in Article I of the Collateral Account
Control Agreement.




          “Margin Value” shall have the meaning specified in Article 1 of the Collateral Account Control
Agreement.




          “Margin Value Deficiency” means the excess of the Obligation Amount over the Margin Value.




          “Master Series A CP Note” has the meaning specified in Section 2.01 of this Indenture.




          “Maturity Date” means, as to each Series A CP Note, the Maturity Date set forth on the face
thereof.; provided, however, the Maturity Date of a Series A CP Note shall not be greater than 270
days after the related Closing Date; and further provided that a Maturity Date must be on a
Business Day


4









 







           “Note Account” means the account of that name established pursuant to Section 8.05 of this
Indenture.




          “Notice of Exclusive Control” has the meaning set forth in Article 1 of the Collateral Account
Control Agreement.




          ‘Obligation Amount” has the meaning specified in Article 1 of the Collateral Account Control
Agreement.




          “Officer’s Certificate” means a certificate signed by the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer of the relevant
party and delivered to the Trustee.




          “Opinion of Counsel” means a written opinion reasonably acceptable to the party to whom the
opinion is directed. of counsel, who may be counsel for or an employee of the Person providing the
opinion.




          “Outstanding” as of any date of determination and with respect to Series A CP Notes, refers to
all Series A CP Notes theretofore authenticated and delivered under this Indenture, except:





	 	(i)	 	Series A CP Notes theretofore cancelled or delivered for cancellation, as
specified in this Indenture;
	 
	 	(ii)	 	Series A CP Notes or portions thereof for which payment or redemption money in
the necessary amount has been theretofore deposited as specified in this Indenture;
	 
	 	(iii)	 	Series A CP Notes in exchange for or in lieu of which other Series A CP Notes
have been authenticated and delivered pursuant to this Indenture, unless proof is
presented to the Trustee that any such Series A CP Notes are held by a holder in due
course; and
	 
	 	(iv)	 	Series A CP Notes alleged to have been destroyed, lost or stolen and for which
replacement Series A CP Notes have been issued as provided for in this Indenture.





          “Paying Agent” means any paying agent appointed pursuant to Section 2.08 of this Indenture,
and shall initially be the Trustee.




          “Payment Date” means each Interest Payment Date and each Maturity Date.




          “Permitted Lien” means with respect to the Collateral, Liens in favor of the Trustee pursuant
to this Indenture.




          “Person” means any legal person, including any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust, unincorporated
organization, governmental entity or other entity of similar nature.







5









 








          “Record Date” means the Business Day immediately preceding a Payment Date or Interest Payment
Date .




          “Relevant UCC State” means each jurisdiction in which the filing of a UCC financing statement
is necessary to perfect the ownership interest of the Issuer pursuant to the security interest
granted to the Issuer or the Trustee.




          “Secured Obligations” has the meaning assigned in the granting clauses of this Indenture.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Securities Intermediary” has the meaning specified in the Collateral Account Control
Agreement.




          “Series A CP Note Interest” means, with respect to any interest-bearing Series A CP Note, the
interest payable in respect of such Series A CP Notes (as calculated in accordance with Section
2.15 hereof and payable pursuant to Section 8.02 of this Indenture), including any interest
remaining unpaid from any prior Interest Payment Date.




          “Series A CP Note Principal” means principal payable in respect of the Series A CP Notes
pursuant to Section 8.02 of this Indenture.




          “Series A CP Note Rate” means with respect to each Series A CP Note, the rate set by the
Issuer at the time of issuance thereof, which rate shall be communicated to the Trustee by the
Issuer in its Issuance Notice.




          “Series A CP Note Register” means the register maintained pursuant to Section 2.05(a) of this
Indenture, providing for the registration of the Series A CP Notes and transfers and exchanges
thereof.




          “Series A CP Noteholder or Holder” means the Person in whose name a Series A CP Note is
registered in the Series A CP Note Register.




          “Series A CP Notes” means the Issuer’s Secured Commercial Paper Notes, issued pursuant to
Section 2.01 of this Indenture and authenticated by the Trustee substantially in the form attached
hereto as Exhibit A.




          “Series A CP Note Owner or Owner” means with respect to a Book Entry Series A CP Note, the
Person that is the beneficial owner of such Book Entry Series A CP Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency), and with respect to a Definitive Note, the
Person that is the registered owner of such Series A CP Note as reflected in the Note Register.




          “Transfer” means to transfer, sell, exchange, pledge, hypothecate, participate, or otherwise
assign, in whole or in part.







6









 








          “Transfer Agent and Registrar” has the meaning specified in Section 2.05 of this Indenture.




          “Trustee” means The Bank of New York Mellon, in its capacity as indenture trustee under this
Indenture, or any successor trustee appointed as provided therein.




          “UCC” means the Uniform Commercial Code, as amended from time to time, as in effect in the
applicable jurisdiction.



Section 1.02 Rules of Construction.




          Except as otherwise expressly provided in this Indenture or unless the context otherwise
clearly requires:





	 	(a)	 	Defined terms include, as appropriate, all genders and the plural as well as the
singular. References to designated articles, sections, and other subdivisions of this
Indenture, such as “Section 2.04(a),” refer to the designated article, section, or other
subdivision of this Indenture as a whole and to all subdivisions of the designated article,
section, or other subdivision. The words “herein,” “hereof,” “hereto,” “hereunder” and
other words of similar import refer to this Indenture as a whole and not to any particular
article, section, or other subdivision of this Indenture.
	 
	 	(b)	 	Any term that relates to a document or a statute, rule or regulation includes any
amendments, modifications, supplements or any other changes that may have occurred since
the document, statute or rule came into being, including changes that occur after the date
of this Indenture.
	 
	 	(c)	 	Any party may execute any of its obligations under this Indenture either directly or
through others, and the right to cause something to be done rather than doing it directly
shall be implicit in every requirement under this Indenture; provide that any such party
shall remain responsible to the other party hereto for the proper performance of its
obligations hereunder.
	 
	 	(d)	 	The term “including” and all its variations mean “including but not limited to.” Except
when used in conjunction with the word “either,” the word “or” is always used inclusively
(for example, the phrase “A or B” means “A or B or both,” not “either A or B but not
both”).
	 
	 	(e)	 	All accounting terms used in an accounting context shall be construed in accordance
with generally accepted accounting principles as in effect in the United States.
Capitalized terms used in this Indenture without definition that are defined in the Uniform
Commercial Code are used in this Indenture as defined in the Uniform Commercial Code.
	 
	 	(f)	 	In the computation of a period of time from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” or “until” mean “to but
excluding.”




7









 










Section 1.03 Supplements Controlling.




          If a conflict exists between the provisions of this Indenture and any Supplement, the
provisions of the Supplement shall be controlling.



8









 





Article II.




THE SERIES A CP NOTES


Section 2.01 Form Generally.




               The Notes shall be designated as the “Piper Jaffray Secured Series A CP Notes.” The Notes,
together with the Trustee’s certificate of authentication, shall be in substantially the forms set
forth in Exhibit A with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Series A CP Notes, as evidenced by their execution of the
Series A CP Notes. Any portion of the text of any Series A CP Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Series A CP Note.



               The Definitive Notes and the global certificate (“Master Series A CP Note”) representing the
Book Entry Series A CP Notes shall be typewritten, printed, lithographed or engraved or produced by
any combination of these methods (with or without steel engraved borders), all as determined by the
officers executing such Series A CP Notes, as evidenced by their execution of such Series A CP
Notes.



               Each Series A CP Note shall be dated the date of its authentication. The terms of the Series
A CP Notes set forth in Exhibit A are part of the terms of this Indenture.


Section 2.02 Denominations.




          The Series A CP Notes shall be issued in minimum amounts of $250,000 and integral multiples of
$5,000 in excess thereof. Series A CP Notes shall be issued without coupons attached. Purchases
of the Series A CP Notes will not be permitted in principal amounts less than $1,000,000.



Section 2.03 Execution, Authentication and Delivery.




          Each Series A CP Note shall be executed by manual or facsimile signature by an Authorized
Representative of the Issuer and shall be authenticated by the Trustee at the written direction of
an Authorized Representative of the Issuer.




          Series A CP Notes bearing the manual or facsimile signature of an individual who was, at the
time when the signature was affixed, authorized to sign on behalf of the Issuer shall not be
rendered invalid notwithstanding the fact that the individual ceased to be so authorized prior to
the authentication and delivery of the Series A CP Notes or does not hold that office at the date
of issuance of the Series A CP Notes.







9









 








          No Series A CP Note shall be entitled to any benefit under this Indenture or be valid for any
purpose unless a certificate of authentication appears on the Series A CP Note substantially in the
form provided for in this Indenture executed by the Trustee by the manual signature of a duly
authorized signatory. The certificate of authentication upon any Series A CP Note shall be
conclusive evidence, and the only evidence, that that Series A CP Note has been duly authenticated
and delivered.




          The Issuer will from time to time to the extent it determines to issue Definitive Series A CP
Notes, furnish to the Trustee an adequate supply of Series A CP Notes. Definitive Series A CP
Notes, if any, shall be in substantially the form agreed upon by the Issuer and the Trustee and
shall be serially numbered and shall have been executed by manual or facsimile signature of an
Authorized Representative (as hereafter defined), but shall otherwise be uncompleted. Book-Entry
Series A CP Notes shall be represented by a single Master Series A CP Notes substantially in the
form attached hereto as Exhibit A and which shall be executed by manual or facsimile signature by
an Authorized Representative in accordance with the Letter of Representations. Pending receipt of
instructions pursuant to this Agreement, the Trustee will hold the Master Series A CP Note in
safekeeping for the account of the Issuer or the Clearing Agency, as the case may be, in accordance
with Trustee’s customary practice and the requirements of the Certificate Agreement.




          Each Definitive Series A CP Note or Master Note delivered to the Trustee shall be accompanied
by a letter from the Issuer, as the case may be, identifying the Definitive Series A CP Note or
Master Note(s) transmitted therewith, and the Trustee shall acknowledge receipt of such Definitive
Series A CP Note(s) or Master Note(s) on the copy of such letter or pursuant to some other form of
written receipt deemed appropriate by the Trustee at the time of delivery to the Trustee of such
Definitive Series A CP Note(s) or Master Note(s). Pending the issuance of Definitive Series A CP
Notes as provided in Section 2.13 of this Indenture, all Definitive Series A CP Notes and Master
Note(s) delivered to the Trustee shall be held by the Trustee for the account of the Issuer or the
Clearing Agency, as the case may be, for safekeeping in accordance with the Trustee’s customary
practice and the requirements of the Certificate Agreement.



Section 2.04 Authenticating Agent.





	 	(a)	 	The Trustee may appoint authenticating agents (who must be Designated Officers of the
Trustee) for the Series A CP Notes. Any authenticating agent shall be authorized to act on
behalf of the Trustee in authenticating the Series A CP Notes in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the Series A CP
Notes. Whenever reference is made in this Indenture to the authentication of Series A CP
Notes by the Trustee or the Trustee’s certificate of authentication, that reference
includes authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be acceptable to the Issuer.
	 
	 	(b)	 	Any institution succeeding to the corporate agency business of an authenticating agent
shall continue to be an authenticating agent without the execution or filing of any power
or any further act on the part of the Trustee or the authenticating agent.





10









 





	 	(c)	 	An authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time terminate the
agency of an authenticating agent by giving notice of termination to that authenticating
agent and to the Issuer.
	 
	 	(d)	 	The Issuer agrees to pay to each authenticating agent from time to time reasonable
compensation for its services under this Section.
	 
	 	(e)	 	The provisions of Sections 6.01 and 6.04 shall be applicable to any authenticating
agent.
	 
	 	(f)	 	Pursuant to an appointment made under this Section, the Series A CP Notes may be
endorsed using, in lieu of or in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in substantially the following form:





          “This is one of the Series A CP Notes described in the within-mentioned Indenture.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	 	as Authenticating Agent 	 
	 	 	for the Trustee 	 
	 
	 	 	 
	 	By: 
	 
	 	 	Authorized Signatory” 	 
	 	 	 	 
	 
	 	Dated:	 	 
	 	 	 	
       
	 	 	 
	 	 	 
	 


Section 2.05 Registration of and Limitations on Transfer and Exchange of Series A CP Notes.




          (a) The Issuer shall cause to be kept a register (the “Series A CP Note Register”) in
which, subject to such reasonable regulations as it may prescribe and the restrictions on transfers
of the Series A CP Notes as provided herein, a transfer agent and registrar (the “Transfer
Agent and Registrar”) shall provide for the registration of the Series A CP Notes and of
transfers and exchanges of the Series A CP Notes. The Transfer Agent and Registrar shall initially
be the Trustee, and the Series A CP Note Register shall initially be kept at the office of the
Trustee. Unless the context requires otherwise, any reference in this Indenture to the Transfer
Agent and Registrar shall include any co-transfer agent and registrar appointed by the Trustee.




          The Trustee shall be permitted to resign as Transfer Agent and Registrar upon 30 days’ written
notice to the Issuer and the Series A CP Noteholders; provided, however, that such
resignation shall not be effective and the Trustee shall continue to perform its duties as Transfer
Agent and Registrar until the Issuer at its own expense has appointed a successor Transfer Agent
and Registrar reasonably acceptable to the Trustee. If, after the date hereof, a Person other than
the Trustee is appointed by the Issuer as Transfer Agent and Registrar, the Issuer shall give the
Trustee prompt written notice of that appointment and of the location, and any change in the
location, of the Series A CP Note Register. The Trustee may inspect the Series A CP Note Register
at all reasonable times and obtain copies of it, and the Trustee may conclusively rely





11











 




upon a certificate executed by the Transfer Agent and Registrar as to the names, addresses and
taxpayer identification numbers of the Series A CP Noteholders and the principal balances and
numbers of the Series A CP Notes.




          Upon surrender for registration of transfer of any Series A CP Note at any office or agency of
the Transfer Agent and Registrar maintained for such purpose, the Issuer shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Series A CP Notes in any authorized denominations of like aggregate principal
balance.



          At the option of a Series A CP Noteholder, Series A CP Notes may be exchanged for other Series
A CP Notes in any authorized denominations of like aggregate principal balance, upon surrender of
the Series A CP Notes to be exchanged at any office or agency of the Transfer Agent and Registrar
maintained for such purpose. Whenever any Series A CP Note is so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the Series A CP Notes which
the Series A CP Noteholder making the exchange is entitled to receive.



          All Series A CP Notes issued upon any registration of transfer or exchange of Series A CP
Notes shall evidence the same obligations and the same debt, and their Holders shall be entitled to
the same rights and privileges under this Indenture, as the surrendered Series A CP Notes or the
Holders thereof, as applicable.



          Every Series A CP Note presented or surrendered for registration of transfer or exchange shall
be duly endorsed by, or be accompanied by (i) a written instrument of transfer in a form
satisfactory to the Transfer Agent and Registrar and duly executed by, its Holder or any
attorney-in-fact thereof duly authorized in writing, (ii) any representation letters or
certifications required by the Series A CP Notes and (iii) any other documents reasonably required
by the Transfer Agent and Registrar. Each Series A CP Noteholder must satisfy all transfer
restrictions set forth in the Series A CP Notes.



          Each Series A CP Note shall be registered at all times as herein provided, and any transfer or
exchange of such Series A CP Note shall be valid for purposes hereunder only upon registration of
such transfer or exchange by the Transfer Agent and Registrar as provided herein. Payments on any
Payment Date shall be made to Series A CP Noteholders of record on the immediately preceding Record
Date.



          No service charge shall be made for any registration of transfer or exchange of Series A CP
Notes, but the Transfer Agent and Registrar or any co-transfer agent and registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Series A CP Notes.



          (b)      The Transfer Agent and Registrar shall at all times maintain in The City of New York, an
office or offices or agency or agencies where Series A CP Notes may be surrendered for registration
of transfer or exchange.



          (c)      No Series A CP Note may be offered, sold, delivered or transferred (including, without
limitation, by pledge or hypothecation) except to Qualified Institutional Buyers (“QIBs”)



12









 




and entities (exclusive of a natural person) acting for their own account or the accounts of
other similarly qualified purchasers who in the aggregate own and invest on a discretionary basis
not less than $25,000,000 in Investments (as defined in Exhibit B hereto) (“QP”), in each case
purchasing for their own account. Each Series A CP Note shall bear a restrictive legend to the
foregoing effect substantially in the form of the legends on the face of the form of Series A CP
Note at Exhibit A.




          (d)      Each Prospective Owner shall represent and warrant in writing in substantially the form
set forth in Exhibit B hereto, to the Issuer, Indenture Trustee and the Series A CP Note Registrar
and any of their respective successors that:




(i)      Such Person is duly authorized to purchase such Series A CP Notes and its purchase of
investments having the characteristics of such Series A CP Notes is authorized under, and
not directly or indirectly in contravention of, any law, charter, trust instrument or other
operative document, investment guidelines or list of permissible or impermissible
investments that is applicable to the investor; and




(ii)      Such Person understands that each holder of such Series A CP Note, by virtue of its
acceptance thereof, assents to the terms, provisions and conditions of this Indenture.



          (e)      Each Prospective Owner of a Series A CP Note shall represent and warrant in writing, in
substantially the form set forth in Exhibit B hereto, as applicable, to the Issuer, the Indenture
Trustee and the Series A CP Note Registrar and any of their respective successors that:




(i)      Such Person is a QIB or QP and is acquiring such Series A CP Note for its own account or
for the account of one or more QIBs for whom it is authorized to act; and




(ii)      Such Person understands that such Series A CP Notes have not been registered under the
Securities Act, and that, if in the future it decides to offer, resell, pledge or otherwise
transfer such Series A CP Notes, such Series A CP Notes may be offered, resold, pledged or
otherwise transferred only to a person whom the seller reasonably believes is a QIB or QP
that is purchasing such Notes for its own account or for the account of a QIB or QP, in each
case in compliance with the requirements of this Indenture.



          (f)      In the event that a Series A CP Note is transferred to a Person that does not meet the
requirements of this Section 2.05, such transfer shall be of no force and effect, shall be void ab
initio, and shall not operate to transfer any rights to such Person, notwithstanding any
instructions to the contrary to the Issuer, the Trustee or any intermediary; and neither the
Indenture Trustee nor the Issuer shall make any payments on such Note for as long as such Person is
the Series A CP Noteholders of such Series A CP Note.



          (g)      Each Holder of a Series A CP Note (or Note Owner) desiring to effect such a transfer
shall, and does hereby agree to, indemnify the Issuer and the Trustee against any liability that
may result if the transfer is not so exempt or is not made in accordance with federal and state
securities laws and any other restrictions specified in this Section 2.05. Each holder of a
Book-Entry Series A CP Note shall be deemed to have consented to such transfer restrictions.



13









 





          (h)      The Trustee shall cause each Series A CP Note to contain a legend substantially similar to
the applicable legend provided in Exhibit A hereto stating that transfer of such Notes is subject
to certain restrictions as set forth herein.



          (i)      Any purported transfer of a Series A CP Note (or any interest therein) not in accordance
with this Section 2.05 shall be null and void and shall not be given effect for any purpose
hereunder.



          (j)      Neither the Trustee nor the Issuer will have the ability to monitor transfers of the
Series A CP Notes while they are in book-entry form and neither will have any liability for
transfers of Book-Entry Series A CP Notes in violation of any of the transfer restrictions
described in this Section 2.05.


Section 2.06 Mutilated, Destroyed, Lost or Stolen Series A CP Notes.




          If (a) the Trustee receives evidence to its reasonable satisfaction of the destruction, loss
or theft of any Series A CP Note, and there is delivered to the Trustee such security or indemnity
as may be required by it to hold the Issuer, the Transfer Agent and Registrar and the Trustee
harmless or (b) any mutilated Series A CP Note is surrendered to the Trustee, then, in the absence
of notice to the Issuer, the Transfer Agent and Registrar or the Trustee that the Series A CP Note
has been acquired by a bona fide purchaser, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Series A CP Note, a replacement Series A CP Note of like tenor (including the same date of
issuance) and principal amount, bearing a number not contemporaneously outstanding.



          However, if the mutilated, destroyed, lost or stolen Series A CP Note shall have become or
within seven days shall be due and payable, or shall have been selected or called for redemption,
instead of issuing a replacement Series A CP Note, the Issuer may pay the Series A CP Note without
its surrender, except that any mutilated Series A CP Note shall be surrendered. If a bona fide
purchaser of the original Series A CP Note in lieu of which a replacement Series A CP Note was
issued (or payment was made) presents for payment the original Series A CP Note, the Issuer and the
Trustee shall be entitled to recover the replacement Series A CP Note (or the payment) from the
Person to whom it was delivered or any Person taking the replacement Series A CP Note from the
Person to whom the replacement Series A CP Note was delivered or any assignee of that Person,
except a bona fide purchaser.



          Upon the issuance of any replacement Series A CP Note under this Section, the Issuer may
require the payment by the Holder of the Series A CP Note of a sum sufficient to cover any tax or
other governmental charge that may be imposed on that issuance and any other reasonable expenses
(including the fees and expenses of the Trustee or the Transfer Agent and Registrar) connected with
that issuance.



          Every replacement Series A CP Note issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Series A CP Note shall constitute complete and indefeasible
evidence of a claim against the Issuer secured by the lien of this Indenture, as if originally
issued, whether or not the destroyed, lost or stolen Series A CP Note shall be found at



14









 




any time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any other duly issued Series A CP Notes.




          The provisions of this Section are exclusive and shall preclude all other rights and remedies
regarding the replacement or payment of mutilated, destroyed, lost or stolen Series A CP Notes.


Section 2.07 Persons Deemed Owners.




          Prior to due presentation for registration of transfer of any Series A CP Note, the Issuer,
the Trustee and any agent of the Issuer or the Trustee shall treat the Person in whose name any
Series A CP Note is registered as the owner of that Series A CP Note for the purpose of receiving
distributions pursuant to the terms herein and for all other purposes whatsoever. Neither the
Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to
the contrary.


Section 2.08 Appointment of Paying Agent.




          The Trustee shall always be a Paying Agent for the Series A CP Notes (and the Trustee hereby
accepts its appointments as a Paying Agent hereunder). The Issuer may appoint additional Paying
Agents and may vary or terminate the appointment of any Paying Agent other than the Trustee. Any
additional Paying Agent appointed by the Issuer shall be a bank or other financial institution
which, on the date of appointment, has short-term debt ratings of at least “P-1” from Moody’s and
“A-1” from Standard & Poor’s.



          Notice of all changes in the identity or specified office of a Paying Agent shall be delivered
promptly to the Series A CP Noteholders by the Issuer.


Section 2.09 Access to List of Series A CP Noteholders’ Names and Addresses.




          (a)      The Transfer Agent and Registrar shall furnish or cause to be furnished to the Issuer, the
Trustee, any Owner or any Paying Agent requesting it a list of the names and addresses of the
Series A CP Noteholders within five Business Days after receipt by the Transfer Agent and Registrar
of a written request therefor from that Person; provided, however, that in the case of a person
claiming to be an Owner requesting a list of such names and addresses the Transfer Agent and
Registrar shall not furnish such list until the Issuer shall have authorized release of such list
and the Trustee shall have no liability for such release or the identity of the requesting person.



          (b)      Every Series A CP Noteholder, by receiving and holding a Series A CP Note, agrees that
none of the Issuer, the Trustee, the Transfer Agent and Registrar nor any of their respective
agents and employees shall be held accountable for the disclosure of any information as to the
names and addresses of the Series A CP Noteholders pursuant to clause (a) above.


Section 2.10 Cancellation.




          All Series A CP Notes surrendered for payment, registration of transfer, exchange, or
redemption shall be delivered to the Trustee and promptly canceled by it in accordance with its



15









 




customary procedures. The Issuer may at any time deliver to the Trustee for cancellation any
Series A CP Notes previously authenticated and delivered that the Issuer may have acquired in any
lawful manner. All Series A CP Notes so delivered shall be promptly canceled by the Trustee in
accordance with its customary procedures. No Series A CP Notes shall be authenticated in lieu of
or in exchange for any Series A CP Notes canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Series A CP Notes held by the Trustee shall be disposed
of by it in its customary manner unless the Issuer directs by a timely order that they be returned
to it. Promptly upon the written request of the Issuer, Trustee shall cancel and return to the
Issuer issued Certificated Series A CP Notes in its possession at the time of such request.



Section 2.11. Book Entry Series A CP Notes.




          The Series A CP Notes will be issued in the form of typewritten Notes or Master Notes
representing Book Entry Series A CP Notes, to be delivered to, or to the Trustee, as custodian for,
the Clearing Agency, by, or on behalf of, the Issuer. The Book Entry Series A CP Notes shall be
registered initially on the Note Register in the name of Cede & Co., the nominee of the Clearing
Agency, and no Owner of Book Entry Series A CP Notes thereof will receive a Definitive Note
representing such Series A CP Note Owner’s interest in such Book-Entry Note, except as provided in
Section 2.13. Unless and until definitive, fully registered Notes (the “Definitive Notes”) have
been issued to such Owners of Book Entry Series A CP Notes pursuant to Section 2.13:



          (i)      the provisions of this Section shall be in full force and effect;



          (ii)      the Note Registrar, the Trustee and the Issuer shall be entitled to deal with the
Clearing Agency for all purposes of this Indenture (including the payment of principal of and
interest on the Book Entry Series A CP Notes and the giving of instructions or directions
hereunder) as the sole holder of the Book Entry Series A CP Notes, and shall have no obligation to
the Owners of Book Entry Series A CP Notes;



          (iii)      to the extent that the provisions of this Section conflict with any other provisions of
this Indenture, the provisions of this Section shall control;



          (iv)      the rights of Owners of Book Entry Series A CP Notes shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements between such Owners
of Book Entry Series A CP Notes and the Clearing Agency and/or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until Definitive Notes are issued pursuant
to Section 2.13, neither the Trustee nor the Note Registrar shall register any transfer of a
beneficial interest in a Book-Entry Note; and the initial Clearing Agency will make book entry
transfers among the Clearing Agency Participants and receive and transmit payments of principal of
and interest on the Book Entry Series A CP Notes to such Clearing Agency Participants; and



          (v)      whenever this Indenture requires or permits actions to be taken based upon instructions or
directions of Holders of Notes evidencing a specified percentage of the Outstanding balance of the
Notes, the Clearing Agency shall be deemed to represent such



16









 




percentage only to the extent that it has received instructions to such effect from Owners of
Book Entry Series A CP Notes and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Book Entry Series A CP
Notes and has delivered such instructions to the Trustee.



Section 2.12 Notices to Clearing Agency.




          Whenever a notice or other communication to the Series A CP Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to such Owners of Book Entry
Series A CP Notes pursuant to Section 2.13, the Trustee shall give all such notices and
communications specified herein to be given to Owners of Book Entry Series A CP Notes to the
Clearing Agency, and shall have no obligation to such Series A CP Noteholders.


Section 2.13. Definitive Notes.



          If (i) the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book Entry Series A CP Notes and the Issuer is unable to
locate a qualified successor or (ii) after the occurrence of an Event of Default hereunder, Series
A CP Note Owners of the Book Entry Series A CP Notes representing beneficial interests aggregating
at least a majority of the Outstanding Balance of the Book Entry Series A CP Notes advise the
Clearing Agency in writing that the continuation of a book entry system through the Clearing Agency
is no longer in the best interests of such Series A CP Note Owners, then the Clearing Agency shall
notify all Owners of Book Entry Series A CP Notes, the Trustee and the Note Registrar of the
occurrence of any such event and of the availability of Definitive Notes to Owners of Book Entry
Series A CP Notes requesting the same. Upon surrender to the Note Registrar of the typewritten
Notes representing the Book Entry Series A CP Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Note Registrar shall authenticate the
Definitive Notes in accordance with the instructions of the Clearing Agency. None of the Issuer,
the Note Registrar, or the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Trustee and the Issuer shall recognize the Holders of such
Definitive Notes as Noteholders.


Section 2.14 Series A CP Note Issuance Procedures.




          (a)      On the initial Closing Date, the Issuer shall execute and the Trustee shall authenticate
and deliver the Master Series A CP Note, which shall not contain a specified principal amount but
shall represent the entire amount of Series A CP Notes Outstanding from time to time hereunder;
provided that the maximum principal aggregate amount of the Series A CP Notes shall not exceed
$300,000,000 at any time. The Master Series A CP Note shall be held by Trustee as Issuing Agent
and custodian for the Depository.



          (b)      From time to time during the term of this Indenture and subject to the terms and
conditions hereof, and upon the Trustee’s timely receipt of written or telecopy instructions,
notice transmitted directly to the Trustee’s computers or in such manner as the Trustee then
employs as its normal business practice (collectively, “Instructions”), not later than 2:00 p.m.,
New York City time, on a Business Day, from an Authorized Representative, on the Business



17









 




Day immediately preceding the date of issuance ( to be followed up by the Issuer’s entry in
the “MMI/OIS” system (or any successor to such system) not later than 10:00 a.m., New York City
time on the day of issuance) of any Definitive Series A CP Notes (in the case of instructions from
an Authorized Representative) the Trustee shall withdraw the respective Definitive Series A CP
Notes from safekeeping and in accordance with the Instructions so received, take the following
actions with respect to each such Definitive Series A CP Notes:





(i)      date each such Definitive Series A CP Notes the date of issuance thereof (which shall be
a Business Day) and insert the maturity date thereof (provided that the Authorized
Representative shall ensure that such date is a Business Day and that it shall not less than
30 days or more than 270 days from the date of issue) and the face amount (provided that the
Authorized Representative shall ensure that such face amount is not less than $250,000)
thereof in figures;




(ii)      authenticate (by countersigning) each such Definitive Series A CP Notes in the
appropriate space provided thereon; and




(iii)      deliver in the Borough of Manhattan south of Chambers Street each such Definitive
Series A CP Notes to the person designated by such Authorized Representative against Payment
in immediately available funds of the principal amount of Series A CP Notes.



          (c)      In the case of Book-Entry Series A CP Notes, from time to time during the term of this
Indenture and subject to the terms and conditions hereof, and upon the Trustee’s timely receipt of
written or telecopy instructions, notice transmitted directly to the Trustee’s computers or in such
a manner as the Trustee then employs as its normal business practices, and confirmed by the Issuer
by the submission of an Issuance Notice, not later than 2:00 p.m., New York City time, from an
Authorized Representative, on the Business Day immediately preceding the date of issuance ( to be
followed up by the Issuer’s entry in the “MMI/OIS” system (or any successor to such system) not
later than 10:00 a.m., New York City time on the day of issuance) of any Book-Entry Series A CP
Notes (in the case of instructions from an Authorized Representative) the Trustee shall give
issuance instructions for the issuance of Book-Entry Series A CP Notes to the Clearing Agency in a
manner set forth in, and take other actions as are required by, the Letter of Representations and
the Certificate Agreement. Instructions for the issuance of Book-Entry Series A CP Notes shall
include the following information with respect to each Book-Entry Series A CP Note:




(i)      the date of issuance of each such Book-Entry Series A CP Note (which shall be a
Business Day);




(ii)      the maturity date of each such Book-Entry Series A CP Note (provided that the
Authorized Representative shall ensure that such date is a Business Day and that it
shall not be less than 30 days or more than 270 days from the date of issue);




(iii)      the face amount (provided that the Authorized Representative shall ensure that
such face amount is not less than $250,000) in figures; and



18









 





          (iv)      the Interest Rate or discount factor.



          (d)      Trustee shall send a report (by telecopy or other means permitted hereunder) except if
otherwise provided to the Issuer on a monthly basis of the Trustee’s issuance of Series A CP Notes
under this Section 2.14, including the maturity date and face amounts of each Series A CP Note
issued.



          (e)      Instructions must be received by the Trustee by 2:00 p.m., New York City time, on the
Business Day immediately prior to the issuance date, for physical issuance or for book-entry
issuance ( to be followed up by the Issuer’s entry in the “MMI/OIS” system (or any successor to
such system) not later than 10:00 a.m., New York City time on the day of issuance).



          (f)      The Issuer understands that although Trustee has been instructed to deliver Series A CP
Notes against payment, delivery of Series A CP Notes may, in accordance with the custom prevailing
in the commercial paper market, be made before receipt of payment in immediately available funds.
Therefore, once Trustee has delivered a Series A CP Note as instructed by the Issuer, the Issuer
shall bear the risk that a Series A CP Note purchaser fails to remit payment for the Series A CP
Note. Trustee shall have no liability to the Issuer for any failure or inability on the part of a
purchaser to make payment for Series A CP Notes. Nothing in this Agreement shall require Trustee
to purchase any Series A CP Note or expend its own funds for the purchase price of a Series A CP
Note or Series A CP Notes.



          (g)      Except as may otherwise be provided in the Letter of Representations, if at any time the
Issuer instructs Trustee to cease issuing Definitive Series A CP Notes and to issue only Book-Entry
Series A CP Notes, the Trustee agrees that all Series A CP Notes will be issued as Book-Entry
Series A CP Notes and that no Definitive Series A CP Notes shall be exchanged for Book-Entry Series
A CP Notes unless and until the Trustee have received written instructions from an Authorized
Representative to the contrary.



          (h)      It is understood that Trustee is not under any obligation to assess or review the
financial condition or credit worthiness of any person to or for whose account Trustee is
instructed to deliver a Series A CP Note pursuant to instructions from an Authorized Representative
or to advise the Issuer as to the results of any such appraisal or investigation Trustee may have
conducted on its own or of any adverse information concerning any such person that may in any way
have come to Trustee’s attention.



          (i)      It is understood that the Clearing Agency may request the delivery of Definitive Series A
CP Notes in exchange for Book-Entry Series A CP Notes upon the termination of the Clearing Agency’s
services pursuant to the Clearing Agency Letter of Representations. Accordingly, upon such
termination, Trustee is authorized to complete and deliver Definitive Series A CP Notes in partial
or complete substitution for Book-Entry Series A CP Notes of the same face amount and maturity as
requested by the Clearing Agency. Upon the completion or delivery of any such Definitive Series A
CP Notes, Trustee shall annotate its records regarding the Master Note with respect to such
Book-Entry Series A CP Notes to reflect a corresponding reduction in the face amount of the
Outstanding Book-Entry Series A CP Notes. Trustee’s



19









 




authority to so complete and deliver such Definitive Series A CP Notes shall be irrevocable at
all times from the time a Book-Entry Series A CP Note is purchased until the indebtedness evidenced
thereby is paid in full.




          (j)      If Trustee shall receive instructions (confirmed in writing in accordance with this
Indenture) from the Issuer not to issue or deliver Series A CP Notes, until revoked in writing or
superseded by further written instructions from the Issuer, Trustee shall not issue or deliver
Series A CP Notes, provided, however, that, Trustee shall be required to deliver Series A CP Notes
in respect of agreements for the sale of Series A CP Notes concluded by an Authorized
Representative prior to receipt by the Authorized Representative of notice of such instructions
from the Issuer, if the Authorized Representative shall have confirmed such delivery to Trustee in
writing prior to Trustee’s delivery of the Series A CP Notes. For purposes of this Section (i),
Trustee may rely on written notice given or delivered to Trustee by an Authorized Representative as
to whether any particular Series A CP Notes are to be issued in respect of such agreements
concluded by such Authorized Representative, and Trustee shall have no obligation to make any other
or further investigation.



          (k)      Each issuance of Series A CP Notes hereunder shall be subject to the conditions (to be
monitored by the Issuer) that: (i) each representation, warranty and covenant of the Issuer
contained in this Indenture is satisfied on the date of such issuance, (ii) there shall be no
occurrence and continuance of an Event of Default that remains uncured, and (iii) there shall have
been confirmed by the Securities Intermediary to the Trustee, on or prior to 11:00 a.m., New York
City time, that there is no Margin Value Deficiency (i.e., the aggregate Series A CP Note Principal
Outstanding immediately after such issuance, taking into account any concurrent maturities and
redemptions, shall not exceed the Margin Value), and no issuance shall occur unless these
conditions are satisfied.


Section 2.15 Payment of Interest and Principal; Optional Redemption.




          (a)      Each Series A CP Note shall either (i) be sold at a discount to the face or par amount
thereof and not bear interest or (ii) accrue interest at the stated Series A CP Note Rate and such
interest shall be payable on each Interest Payment Date. If Series A CP Notes are issued with
Interest, such Interest shall be computed on each such Series A CP Note on the basis of a 360-day
year and the actual number of days elapsed in each Interest Accrual Period. The principal of the
Series A CP Notes shall be payable on the related Maturity Date. Notwithstanding the foregoing,
the entire unpaid principal amount of the Series A CP Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred and be continuing, if
the Trustee, or Majority CP Holders have declared the Series A CP Notes to be immediately due and
payable in the manner provided in Section 5.02. All principal payments on the Series A CP Notes
shall be made to the Series A CP Noteholders entitled thereto.



          (b)      By 4:00 p.m., New York City time, on the Business Day immediately prior to each Payment
Date, Issuer shall transfer to Paying Agent for deposit in the Note Account immediately available
funds at least equal to the sum of any Series A CP Note Interest and the aggregate principal amount
of all Series A CP Notes maturing on such Payment Date. In the event Issuer fails to make the
payment by such time, the Trustee may provide DTC with a



20









 




“refusal to pay” notice. Paying Agent shall then pay on the Payment Date to each holder of
the Series A CP Notes (which may, in the case of Book-Entry Series A CP Notes held by Paying Agent
pursuant to the Certificate Agreement, be the Clearing Agency or a nominee of the Clearing Agency),
(i) Series A CP Note Interest, if any, and (ii) the principal amount of all Series A CP Notes
maturing on such Payment Date that are presented to Paying Agent for payment at or prior to 3:00
p.m., New York City time, on such day (or if presented after 3:00 p.m., New York City time, then on
the next succeeding Business Day) to the extent of funds available in the Note Account. Upon
payment by Paying Agent as aforesaid, Paying Agent shall mark Definitive Series A CP Note(s)
presented as paid, cancel such Definitive Series A CP Note(s) and dispose of such cancelled
Definitive Series A CP Notes in accordance with Section 2.10 of this Indenture. After payment of
any matured Book-Entry Series A CP Note, Paying Agent shall also annotate its records to reflect
the remaining aggregate Outstanding principal amount of Book-Entry Series A CP Notes in accordance
with the Letter of Representations.




          (c)      Any Series A CP Note Interest and principal payable on the Maturity Date of any Definitive
Series A CP Note shall be paid on the applicable Payment Date (to the extent of funds available in
the Note Account) to the Person in whose name such Series A CP Note is registered on the Record
Date by check mailed first-class postage prepaid to such Person’s address as it appears on the Note
Register on such Record Date or, upon written request made to the Paying Agent with a copy to the
Trustee, if the Trustee is not the Paying Agent, at least five Business Days prior to the related
Record Date, by the Holder of a Series A CP Note by wire transfer in immediately available funds to
an account specified in the request and at the expense of such Series A CP Noteholder.



          (d)      Upon the request of a Series A CP Noteholder, the Issuer may agree to (but in no event
shall Issuer be required to) redeem some or all of such Noteholder’s Series A CP Notes. If the
Issuer agrees to such a redemption, the Issuer shall immediately notify the Trustee of the
particular Series A CP Notes to be redeemed, including the related Maturity Date (and the new
redemption date), the principal amount of the redemption and the CUSIP number. The Trustee and the
Issuer shall agree upon the procedures to be followed to execute such redemption request. For all
purposes hereunder, the redemption date shall be deemed to be the new Maturity Date for such Series
A CP Notes so redeemed.


Section 2.16 CUSIP Numbers.




          The Issuer in issuing the Series A CP Notes may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Series A CP Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Series A CP Notes, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change
in the “CUSIP” numbers.




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Article III.




REPRESENTATIONS AND COVENANTS OF ISSUER


Section 3.01 Representations and Warranties of the Issuer—General. The Issuer hereby
represents and warrants to the Trustee and the Series A CP Noteholders, as of the Closing Date:





	 	(a)	 	Organization and Good Standing. The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has full power,
authority and legal right to own its properties and conduct its business as such properties
are presently owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Indenture and the Collateral Account Control Agreement
and to execute and deliver to the Trustee the Series A CP Notes pursuant hereto.






	 	(b)	 	Due Authorization; Enforceability. The execution and delivery of this Indenture and
the Collateral Account Control Agreement have been duly authorized by the Issuer by all
necessary action on its part. This Indenture, and the Collateral Account Control Agreement
each constitutes the legal, valid and binding obligation of the Issuer, enforceable against
it in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect, affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether considered in a
proceeding at law or in equity).






	 	(c)	 	No Conflicts. The execution, delivery and performance of this Indenture and the
Collateral Account Control Agreement, the execution and delivery of the Notes, and the
performance of the transactions contemplated under the Basic Documents by the Issuer, do
not (i) contravene its Articles of Incorporation or any other agreements pursuant to which
it is organized, (ii) violate any provision of, or require any filing (except for the
filings under the UCC required by this Agreement, each of which has been duly made and is
in full force and effect), registration, consent or approval under, any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to the Issuer, except for such filings, registrations, consents
or approvals as have already been obtained and are in full force and effect, (iii) result
in a breach of or constitute a default or require any consent under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which the Issuer is a
party or by which it or its properties may be bound or affected except those as to which a
consent or waiver has been obtained and is in full force and effect and an executed copy of
which has been delivered to the Trustee, or (iv) result in, or require, the creation or
imposition of any Lien upon or with respect to any of the properties now owned or hereafter
acquired by the Issuer other than as specifically contemplated by this Agreement.






	 	(d)	 	Use of Proceeds. No proceeds of the issuance of any Series A CP Note will be used by
the Issuer to purchase or carry any margin security within the meaning of, or otherwise




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	 	 	 	contravene or conflict with any of, Regulations T, U or X of the Board of Governors of the
Federal Reserve System.






	 	(e)	 	Certain Security Interest Representations. The Issuer further represents and warrants
as follows with respect to the security interest in the Collateral granted to the Trustee
hereunder:






(i) This Agreement creates a valid and continuing security interest (as defined
in the UCC) in the Collateral pledged hereunder in favor of the Trustee, which
security interest is prior to all other Liens and is enforceable as such as against
creditors of and purchasers from the Issuer.




(ii) The Issuer has taken or caused to be taken all steps necessary to perfect the
security interest against the Collateral.




(iii) At the time of conveyance hereunder the Issuer owned and had good and
marketable title to the Collateral free and clear of any Lien, claim or encumbrance of
any Person (other than Permitted Liens and Liens, if any, which by their terms are
released in full upon conveyance hereunder).




(iv) The Issuer has caused the filing of all appropriate financing statements in
the proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the grant of the Collateral to the Trustee hereunder.




(v) Other than the transfer to the Trustee pursuant to this Agreement, and any
Liens or encumbrances which by their terms or otherwise are released in full upon
conveyance hereunder, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral. The Issuer has not
authorized the filing of and is not aware of any financing statements against the
Issuer that include a description of collateral covering the Collateral Notes other
than any financing statement relating to the transfers hereunder or that has been or
is being terminated or that relates to a Lien that is or was released in full upon or
prior to the transfer hereunder. The Issuer is not aware of any judgment or tax lien
filings against the Issuer.



               For the purposes of the representations and warranties contained in this Section 3.01 and made
by the Issuer on the initial Closing Date, “Series A CP Notes” shall mean the Series A CP Notes
issued on such Closing Date. The representations and warranties set forth in this Section 3.01
shall survive the grant and assignment of the respective Collateral to the Trustee. The Issuer
hereby represents and warrants to the Trustee, as of each Closing Date that the representations and
warranties of the Issuer set forth in this Section 3.01 are true and correct as of such date. Upon
discovery by the Issuer of a breach of any of the foregoing representations and warranties, the
Issuer shall give written notice to the Series A CP Noteholders, within two (2) Business Days
following such discovery.


Section 3.02 General Covenants of the Issuer.




          The Issuer hereby covenants that:





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	 	(a)	 	Preservation of Legal Existence. It will preserve and maintain its legal existence,
rights, franchises and privileges in the jurisdiction of its formation, and qualify and
remain qualified in good standing in each jurisdiction in which the ownership or lease of
property or the conduct of its business requires such qualification, licenses or approvals.






	 	(b)	 	Reporting Requirements. Unless the Trustee (upon written direction of a Majority of
Series A CP Noteholders) shall otherwise consent in writing, the Issuer shall furnish to
the Trustee and the Trustee will furnish to the Series A CP Noteholders:






	 	 	 	Event of Default. As soon as possible, and in any event within five Business Days after
the Issuer has knowledge of the occurrence of any Event of Default, a written statement
of an Authorized Representative of the Issuer describing such event and the action that
the Issuer proposes to take with respect thereto, in each case in reasonable detail.






	 	(c)	 	Issuer’s Covenants and Agreements. The Issuer will duly observe and perform all
covenants and agreements of the Issuer set forth in this Indenture and the Collateral
Account Control Agreement.






	 	(d)	 	Security Interests. Except for the grants and assignments hereunder, the Issuer will
not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien (other than a Permitted Lien), on any Collateral, whether now
existing or hereafter created or arising, or any interest therein; the Issuer will
immediately notify the Trustee of the existence of any Lien (other than a Permitted Lien)
on any Collateral; and the Issuer shall defend the right, title and interest of the Trustee
in, to and under the Collateral, whether now existing or hereafter created or arising,
against all claims of third parties claiming through or under the Issuer, including, but
not limited to, the filing of any continuation statements required by applicable law.





          Upon discovery by an Authorized Representative of the Issuer of a breach of any of the
foregoing covenants, the Issuer shall give written notice to the other parties hereto, and to the
Series A CP Noteholders, within two Business Days following such discovery. Upon receipt by a
Designated Officer of the Trustee of written notice of a breach of any of the foregoing covenants,
the Trustee shall give written notice to the other parties to hereto, and to the Series A CP
Noteholders, within two Business Days following receipt of such written notice.



Section 3.03 Collateral Maintenance; Substitution; Trustee Daily Collateral Reports.




          On the initial Closing Date, the Issuer shall have deposited in the Collateral Account,
Eligible Collateral with a Margin Value of not less than the Obligation Amount. At or before 1:00
p.m. New York City time each Business Day thereafter, Securities
Intermediary will determine the Margin Value of the Collateral, in accordance with Article III
of the Collateral Account Control Agreement. If the Securities Intermediary notifies the Issuer at
or before 1:00 p.m. New York City time on any Business Day of the existence of a Margin Deficiency
(taking into account any new issuance, maturities or redemptions), then on or before 3:30 p.m. New
York City time on such Business Day, the Issuer shall deliver to Securities Intermediary for
deposit into the Collateral Account an amount of Collateral at least equal to the Margin
Deficiency. If the Securities Intermediary notifies the Issuer after 1:00 p.m. New York City time




24









 








on any Business Day of the existence of a Margin Deficiency, the Issuer shall use its best efforts
to deliver on or before the close of business on such Business Day, to Securities Intermediary for
deposit into the Collateral Account an amount of Collateral at least equal to the Margin
Deficiency; provided, however, that in no case shall the Issuer deliver such Collateral after 1:00
p.m. New York City time on the following Business Day.




          Assuming that Securities Intermediary has not received a Notice of Exclusive Control (in the
form of Exhibit C hereto) from the Trustee, as Secured Party, pursuant to Section 5.04, and
provided that there shall not be a Collateral Deficiency immediately after any substitution
referred to herein, the Issuer shall be permitted at any time prior to 3:30 p.m. New York City time
during any Business Day, to substitute new Eligible Collateral for existing Eligible Collateral in
the Collateral Account having at least the same market value as the Eligible Collateral for which
the substitution is made held; provided however that on any Business Day on which new Series A CP
Notes are being issued, no such substitutions shall be permitted after 10:00 a.m. New York City
time. Such substitutions shall be effectuated by the Securities Intermediary upon receipt of Oral
or Written Instructions of the Issuer in the manner specified in Article III of the Collateral
Account Control Agreement.




          The Trustee shall obtain from the Securities Intermediary’s data base, Access Edge, the
information needed to prepare and shall prepare and deliver a Daily Collateral Report on each
Business Day to the Issuer.



Section 3.04 Money for Series A CP Note Payments to Be Held in Trust.




          The Issuer will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which that Paying Agent agrees with the Trustee that it will, and the
Trustee hereby agrees in its capacity as Paying Agent, subject to the provisions of this Section,
that it will:




(i) hold all sums held by it for the payment of amounts due on the Series A CP
Notes in trust for the benefit of the Persons entitled to them until those sums are
paid to the Persons entitled to them or otherwise disposed of as provided in this
Indenture, and pay those sums to the Persons entitled to them as provided in this
Indenture;



(ii) give the Issuer and the Trustee notice of any default by the Issuer in the
making of any payment required to be made on the Series A CP Notes of which it has
actual knowledge;



(iii) at any time during the continuance of any payment default on the Series A CP
Notes, upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by it for the payment of Notes;



(iv) immediately resign as a Paying Agent and forthwith pay to the Trustee all
sums held by it in trust for the payment of Series A CP Notes if at any time it ceases
to meet the standards required to be met for a Paying Agent at the time of its
appointment; and



25









 





(v) withhold from any payments made by it on any Series A CP Notes of any
applicable withholding taxes imposed on them and comply with any applicable
withholding reporting requirements.



          To obtain the satisfaction and discharge of this Indenture or for any other purpose, the
Issuer may at any time in writing direct any Paying Agent to pay to the Trustee all sums held in
trust by the Paying Agent. Those sums shall be held by the Trustee upon the same trusts as those
upon which they were held by the Paying Agent. Upon that payment by any Paying Agent to the
Trustee, that Paying Agent shall be released from all further liability regarding that money.



Section 3.05 Unclaimed Funds.




          On the request of the Issuer, any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of or interest on any Series A
CP Note and remaining unclaimed for two years after it has become due and payable shall be paid to
the Issuer. The Holder of the Series A CP Note on which payment was due shall thereafter look only
to the Issuer for payment as an unsecured general creditor. All liability of the Trustee or the
Paying Agent regarding that trust money to the extent so paid to the Issuer shall thereupon cease.
The Trustee or the Paying Agent, before being required to make any payment, may at the expense of
the Issuer cause to be published once, in a newspaper of general circulation published in the
English language and customarily published on each Business Day in New York, New York and in the
city in which the principal corporate trust office of the Trustee is located, notice that such
money remains unclaimed and that, after a date specified therein, which shall be not less than 30
days from the date of the publication, any unclaimed balance of that money then remaining will be
repaid to the Issuer. The Trustee may also adopt and employ, at the expense of the Issuer, any
other reasonable means of notification of a release of payment (including mailing notice of the
release to Series A CP Noteholders whose Series A CP Notes have been called but have not been
surrendered for redemption or whose right to monies payable but not claimed is determinable from
the records of any Paying Agent, such notice to be mailed to the last address of record of each
such Series A CP Noteholder).



Section 3.06 Successor Substituted.




          Upon any consolidation or merger or any transfer of the assets of the Issuer substantially as
an entirety, the Person formed by or surviving the consolidation or
merger (if other than the Issuer) or the Person to which the transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Issuer under this
Indenture with the same effect as if that Person had been named as the Issuer. The entity that was
the Issuer prior to the transfer shall be released from its obligations under this Indenture as
Issuer immediately upon the effectiveness of the transfer, but shall not be released from any
obligations or liabilities to the Trustee or the Series A CP Noteholders arising prior to such
effectiveness.



Section 3.07 Authorized Representative




          The Issuer has furnished to the Trustee, and from time to time thereafter may furnish to the
Trustee and shall furnish to you upon the Trustee’s request, certificates (“Incumbency
Certificates”) of a responsible officer of the Issuer certifying the incumbency and specimen



26









 






signatures of officers or agents of the Issuer authorized to execute Series A CP Notes on behalf of
the Issuer by manual or facsimile signature and/or to take other action hereunder on behalf of the
Issuer (each an “Authorized Representative”). Until the Trustee has received a subsequent
incumbency certificate of the Issuer, the Trustee is entitled to conclusively rely on the last such
certificate delivered to the Trustee for purposes of determining the Authorized Representatives.
The Trustee shall not have any responsibility to the Issuer to determine by whom or by what means a
facsimile signature may have been affixed on the Series A CP Notes, or to determine whether any
facsimile or manual signature resembles the specimen signature(s) filed with the Trustee by a duly
authorized officer of the Issuer. Any Series A CP Note bearing the manual or facsimile signature
of a person who is an Authorized Representative on the date such signature is affixed shall be
binding on the Issuer after the authentication thereof by Trustee notwithstanding that such person
shall have died or shall have otherwise ceased to hold his office on the date such Series A CP Note
is countersigned or delivered to the Trustee.




Article IV.




SATISFACTION AND DISCHARGE


Section 4.01 Satisfaction and Discharge.




          This Indenture shall cease to be of further effect with respect to the Series A CP Notes,
except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) the rights of Series A CP Noteholders to receive payments of
principal of and interest on the Notes, (d) the rights and immunities of the Trustee under this
Indenture, including the rights of the Trustee under Section 6.07 and the obligations of the
Trustee under Section 4.02 and (e) the rights of Series A CP Noteholders as beneficiaries of this
Indenture regarding property deposited under Section 4.02 with the Trustee and payable to any of
them, and the Trustee shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to those Series A CP Notes, on demand of and at the expense of the
Issuer, when either:




(i) All Series A CP Notes theretofore authenticated and delivered have been
delivered to the Trustee for cancellation (other than (A) Series A CP Notes that have
been destroyed, lost, or stolen and that have been replaced or paid as provided in
Section 2.06 and (B) Series A CP Notes for whose full payment money has theretofore
been deposited in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section 4.02); or



(ii) (A) the Issuer has deposited or caused to be deposited with the Trustee all
other sums payable hereunder by the Issuer; and




     (B) the Issuer has delivered to the Trustee an Officer’s Certificate of the Issuer
stating that all amounts payable under this Indenture to the Series A CP Noteholders
have been paid.



          Notwithstanding the satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee, the obligations of the Issuer to the Trustee under Section 6.07 and of



27









 






the Trustee to the Series A CP Noteholders under Section 4.02 shall survive such satisfaction and
disharge.



Section 4.02 Application of Trust Money.




          All monies deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it in accordance with the provisions of the Series A CP Notes and this Indenture to make
payments of all sums due and to become due on the Series A CP Notes for principal and interest to
the Series A CP Noteholders for whose payment the monies have been deposited with the Trustee.
These payments may be made either directly or through any Paying Agent, as the Trustee may
determine. These monies need not be segregated from other funds except to the extent required
herein.




Article V.




DEFAULTS AND REMEDIES


Section 5.01 Events of Default.





	 	(a)	 	The occurrence of any one of the following shall constitute a default (each an “Event
of Default”) by Issuer hereunder: (i) if Issuer shall fail to pay any (A) Series A CP Note
Principal, within five (5) days after the date on which such payment shall become due and
payable, or declared due and payable, or (B) Series A CP Note Interest, if any, within five
(5) days after the date on which such payment of interest shall become due and payable, or
declared due and payable; (ii) if Issuer shall fail to pledge additional Collateral as
required under Section 3.03 hereof; (iii) if Issuer shall default in the performance or
observance of any other of its obligations under this Indenture or the Collateral Account
Control Agreement and such default shall remain uncured for a period of fifteen (15) days
after notice from Trustee; (iv) if any representation, warranty, statement, report or
certificate made or delivered by Issuer or any of its officers, employees or agents, to the
Trustee or Series A CP Noteholders as required hereunder, is not true and correct in any
material respect when made or deemed made; (v) If Issuer shall (A) become insolvent, (B) not
be paying its debts generally as such debts become due, (C) make an assignment for the
benefit of creditors or cause or suffer any of their respective assets to come within the
possession of any receiver, trustee or custodian, (D) have a petition filed by or against
Issuer under the Bankruptcy Reform Act of 1978, as amended, or any similar law or
regulation, (E) have any of its assets attached, seized or levied upon, or (F) otherwise
become the subject of any insolvency or creditor enforcement proceedings, provided however,
that any involuntary petition or other proceeding against Issuer shall not be an Event of
Default unless an order for relief is entered or such proceeding remains undismissed for at
least sixty (60) days; or (vi) if this Indenture, any Series A CP Note, or the Collateral
Account Control Agreement, shall cease to be in full force and effect, shall be declared
null and void, shall be revoked or terminated or shall be subject to any contest by Issuer
as to their validity and/or enforceability, for any reason, or if Issuer shall for any
reason deny any further liability to the Series A CP Noteholders hereunder and thereunder.





28









 











	 	(b)	 	Within five days after the occurence of an Event of Default described in Section
5.01(iii) thorough (vi), the Issuer shall deliver to the Trustee written notice in the form
of an Officer’s Certificate stating the particulars of any event that with the giving of
notice or the lapse of time or both would become an Event of Default, its status, and what
action the Issuer is taking or proposes to take regarding the event.






	 	(c)	 	Upon the occurrence and during the continuance of any Event of Default, Issuer may not
request the issuance of any additional Series A CP Notes under this Indenture, and Trustee
may then forthwith cease authenticating and issuing any additional Series A CP Notes under
this Indenture without any notice to Issuer.




Section 5.02 Acceleration of Maturity; Rescission and Annulment.





	 	(a)	 	If an Event of Default in clause (v)(C), (D), (E) or (F) of the definition thereof
shall occur, the unpaid principal amount of the Notes, together with accrued and unpaid
interest on the Series A CP Notes through the date of acceleration, shall become
immediately due and payable and no notice to such effect from the Issuer, any Series A CP
Noteholder or any other Person to the Trustee shall be required. Upon the occurrence and
during the continuance of an Event of Default described inSections 5.01(i) or (ii), and
upon the receipt of any notice of an Event of Default pursuant to Section 5.01(b), the
Majority Series A CP Noteholders may declare all the Series A CP Notes to be immediately
due and payable by a notice in writing to the Issuer and to the Trustee. Upon any such
declaration the unpaid principal amount of the Notes, together with accrued and unpaid
interest on the Series A CP Notes through the date of acceleration, shall become
immediately due and payable.






	 	(b)	 	If at any time a declaration of acceleration of maturity has been made but before a
judgment or decree for payment of the money due has been obtained by the
Trustee as provided in this Article, the Majority Series A CP Noteholders may rescind and
annul the declaration and its consequences by written notice to the Issuer and the Trustee
if:






	 	(i)	 the Issuer has paid or deposited with the Trustee a sum sufficient to pay:






          1) all payments of principal of and interest on the Series A CP Notes and all other
amounts that would then be due under this Indenture or upon the Series A CP Notes if the
Event of Default giving rise to the acceleration had not occurred; and




          2) all sums paid or advanced by the Trustee and the reasonable compensation,
expenses, disbursements and advances of the Trustee and their respective agents and
outside counsel; and




(ii) all Events of Default, other than the nonpayment of the principal of the
Series A CP Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.14.



          No such rescission shall affect any subsequent default or impair any right consequent thereto.



29









 






Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.




          The Issuer covenants that upon the acceleration of the maturity of the Series A CP Notes
pursuant to Section 5.02 and the demand of the Trustee, the Issuer will immediately pay to the
Trustee for the benefit of the Series A CP Noteholders the whole amount then due and payable on the
Series A CP Notes for principal and interest, with interest upon the overdue principal and, to the
extent that payments of such interest shall be legally enforceable, upon overdue installments of
interest, in the order set forth herein and, in addition thereto, any further amount necessary to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.




          If the Issuer fails to pay these amounts forthwith upon the demand of the Trustee, the
Trustee, in its own name and as Trustee of an express trust, may institute a proceeding for the
collection of the sums so due and unpaid, and may prosecute the proceeding to judgment or final
decree, and may enforce the same against the Issuer and collect the monies adjudged or decreed to
be payable in the manner provided by law.




          If an Event of Default occurs and is continuing, the Trustee may, in its discretion and
subject to the provisions of Section 5.02, Section 5.12 and Section 6.01, proceed to protect and
enforce its rights and the rights of the Series A CP Noteholders under this Indenture by whatever
appropriate proceedings the Trustee may deem necessary to protect and enforce any of those rights,
whether for the specific enforcement of any covenant or agreement contained in the Collateral
Account Control Agreement or in aid of the exercise of any power granted in this Indenture, or to
enforce any other proper remedy or legal or equitable right vested in the Trustee by law.




          If proceedings relating to the Issuer under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency, or other similar law are pending, or if a
receiver, assignee, or trustee in bankruptcy or reorganization, liquidator, sequestrator, or
similar official has been appointed for or taken possession of the Issuer or its property, or if
any other comparable judicial proceedings relating to the Issuer or the creditors or property of
the Issuer are pending, then regardless of whether the principal of any Series A CP Notes shall
then be payable by their terms or by declaration or otherwise and regardless of whether the Trustee
has made any demand pursuant to this Section, the Trustee shall be entitled and empowered, by
intervention in the proceedings or otherwise:





	 	(a)	 	to file and prove a claim for the whole amount of principal and interest owing and
unpaid on the Series A CP Notes, and to file any other papers or documents that may be
appropriate to have the claims of the Trustee and of the Series A CP Noteholders allowed in
any proceedings relating to the Issuer upon the Notes, or to the creditors or property of
the Issuer,






	 	(b)	 	to vote on behalf of the Series A CP Noteholders in any election of a trustee or a
standby trustee in any arrangement, reorganization, liquidation, or other bankruptcy or
insolvency proceedings or in any election of any Person performing similar functions in
comparable proceedings, and





30









 











	 	(c)	 	to collect any monies or other property payable or deliverable on any such claims, and
to distribute all amounts received on the claims of the Series A CP Noteholders and of the
Trustee on their behalf,




and any trustee, receiver, liquidator, custodian, or other similar official is authorized by each
of the Series A CP Noteholders to make payments to the Trustee, and, if the Trustee consents to
payments going directly to the Series A CP Noteholders, to pay to the Trustee such amounts as shall
be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee, and their
respective agents, attorneys, and counsel, and all other expenses and liabilities incurred
(including attorneys’ fees and expenses), and all advances made, by the Trustee and each
predecessor Trustee except as shall have been determined to have been caused by its own gross
negligence or willful misconduct.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Series A CP Noteholders any plan of reorganization,
arrangement, adjustment, or composition affecting the Series A CP Notes or the rights of any Series
A CP Noteholder, or to authorize the Trustee to vote regarding the claim of any Series A CP
Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or Person performing similar functions.




          In any proceedings involving this Indenture or the Series A CP Notes the Trustee shall
represent all the Series A CP Noteholders, and it shall not be necessary to make any Series A CP
Noteholders parties to the proceedings.



Section 5.04 Remedies.





	 	(a)	 	If an Event of Default has occurred and is continuing and the maturity of the Series A
CP Notes has been accelerated, the Trustee shall immediately provide to the Securities
Intermediary a Notice of Exclusive Control in the form of Exhibit C hereto, after which
Trustee shall have sole and exclusive authority to issue Oral and Written Instructions with
respect to the Collateral Account, and, subject to Section 5.05, Section 5.12 and Article
VI hereof, shall do one or more of the following:




(i) institute proceedings in its own name and as trustee for an express trust for
the collection of all amounts then payable on the Series A CP Notes or under this
Indenture (whether by declaration or otherwise), enforce any judgment obtained, and
collect from the Collateral Account securing the Series A CP Notes monies adjudged
due;



(ii) only if so instructed in writing by all Series A CP Noteholders, sell or
liquidate all or a portion of the Collateral at one or more public or private sales
called and conducted in accordance with Section 5.16 to the extent permitted by law;
provided, however, that if the proceeds of such sale or liquidation
distributable to the Series A CP Noteholders are insufficient to discharge in full all
amounts then due and unpaid upon the Series A CP Notes for principal and interest, the
Trustee shall not proceed with such sale or liquidation unless the Holders of 100% of
the Series A CP Notes (other than any Series A CP Notes then held by the Issuer or any
Affiliate thereof) consent in writing thereto;




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(iii) institute proceedings from time to time for the complete or partial
foreclosure of this Indenture with respect to the Collateral; and




(iv) exercise any remedies of a secured party under the UCC and take any other
appropriate action to protect and enforce the rights and remedies of the Trustee or the
Series A CP Noteholders under this Indenture.


For the purpose of determining the sufficiency or insufficiency in clause (ii) above, the Trustee
shall be provided by the Series A CP Noteholders with and may conclusively rely upon an opinion of
an independent investment banking or accounting firm of national reputation as to the feasibility
of the proposed action and as to the sufficiency of the Collateral for these purposes.





	 	(b)	 	The proceeds of the sale or other liquidation of the Collateral shall be distributed as
follows:






     1) first, to the Trustee, all sums paid or advanced by the Trustee and the reasonable
compensation, expenses, disbursements and advances of the Trustee and its respective agents
and outside counsel; and.




     2) second, to the payments of principal of and interest on the Series A CP Notes and
all other amounts then due under this Indenture or upon the Series A CP Notes.




	 	(c)	 	The Trustee may fix a record date and payment date for any payment to Series A CP
Noteholders pursuant to this Section. At least 15 days before that record date, the
Trustee shall mail to each Series A CP Noteholder and the Issuer a notice that states the
record date, the payment date and the amount to be paid.




Section 5.05 Optional Preservation of Trust Assets.




          If the Series A CP Notes have been declared to be payable under Section 5.02 following an
Event of Default and the declaration and its consequences have not been rescinded and annulled, the
Trustee may, but need not, elect to maintain possession of the Collateral. It is the intent of the
parties to this Indenture and the Series A CP Noteholders that all principal of and interest on the
Series A CP Notes be paid in full when due. The Trustee shall take direction from 100% of the
Series A CP Noteholders in determining whether to maintain possession of the Collateral, and may
rely upon an opinion of an independent investment banking or accounting firm of national reputation
addressed to the Trustee as to the feasibility of the proposed action and as to the sufficiency of
the Collateral for these purposes.



Section 5.06 Trustee May Enforce Claims Without Possession of Notes.




          All rights of action and claims under this Indenture or the Series A CP Notes may be
prosecuted and enforced by the Trustee without the possession of any of the Series A CP Notes or
their production in any proceeding relating to them. Any proceeding instituted by the Trustee
shall be brought in its own name as Trustee. Any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Series A CP Noteholders and any other
parties entitled thereto upon which the judgment has been obtained.







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Section 5.07 Limitation on Suits.




          No Series A CP Noteholder shall have any right to institute any proceedings, judicial or
otherwise, regarding this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy under this Indenture, unless:





	 	(a)	 	Series A CP Noteholders of not less than 25% of the Series A CP Notes have made written
request to the Trustee to institute the proceeding in its own name as Trustee;
	 
	 	(b)	 	those Series A CP Noteholders have previously given written notice to the Trustee of a
continuing Event of Default;
	 
	 	(c)	 	those Series A CP Noteholders have offered to the Trustee indemnity satisfactory to it
against the costs, expenses, and liabilities to be incurred in compliance with their
request;
	 
	 	(d)	 	the Trustee for 60 days after its receipt of that notice, request and offer of
indemnity has failed to institute appropriate proceedings; and
	 
	 	(e)	 	no direction inconsistent with the written request has been given to the Trustee during
the 60-day period by the Majority Series A CP Noteholders.





          No one or more Series A CP Noteholders may in any manner whatever under any provision of this
Indenture affect, disturb, or prejudice the rights of any other Series A CP Noteholder or obtain or
seek to obtain priority or preference over any other Series A CP Noteholder or enforce any right
under this Indenture, except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Series A CP Noteholders.




          If the Trustee receives conflicting or inconsistent requests and indemnity from two or more
groups of Series A CP Noteholders, each representing less than Majority Series A CP Noteholders,
the Trustee in its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture; provided, however, that the Trustee shall
be under no obligation to act until it is directed by the Majority Series A CP Noteholders.



Section 5.08 Unconditional Rights of Series A CP Noteholders to Receive Principal and
Interest.




          Notwithstanding any other provision in this Indenture, each Series A CP Noteholder shall have
the absolute and unconditional right to receive payment of the principal of and interest on its
Series A CP Note as that principal and interest becomes due and payable and to institute suit for
the enforcement of that payment. This right shall not be impaired without the consent of the
affected Series A CP Noteholder.



Section 5.09 Restoration of Rights and Remedies.




          If the Trustee or any Series A CP Noteholder has instituted any proceeding to enforce any
right or remedy under this Indenture and that proceeding has been discontinued or abandoned, or has
been determined adversely to the Trustee or to the Series A CP Noteholder, then the Issuer, the
Trustee, and the Series A CP Noteholder shall, subject to any determination in that






33









 







proceeding, be restored to their former positions under this Indenture, and thereafter all
rights and remedies of the Trustee and the Series A CP Noteholders shall continue as though no
proceeding had been instituted.



Section 5.10 Rights and Remedies Cumulative.




          No right, remedy, power, or privilege herein conferred upon or reserved to the Trustee or to
the Series A CP Noteholders is intended to be exclusive of any other right, remedy, power, or
privilege. Every right, remedy, power, or privilege shall be cumulative and in addition to every
other right, remedy, power, or privilege given under this Indenture or now or hereafter existing at
law or in equity or otherwise. The assertion or exercise of any right, remedy, power, or privilege
shall not preclude any other further assertion or the exercise of any other appropriate right,
remedy, power, or privilege.



Section 5.11 Delay or Omission Not Waiver.




          No failure to exercise and no delay in exercising, on the part of the Trustee or of any Series
A CP Noteholder or other Person, any right, remedy, power, or privilege upon any Event of Default
shall impair that right, remedy, power, or privilege or constitute a waiver of it or of the Event
of Default or an acquiescence in the Event of Default. Every right, remedy, power, or privilege
given by this Article or by law to the Trustee or to the Series A CP Noteholders may be exercised
as often as may be deemed expedient by the Trustee or by the Series A CP Noteholders, as the case
may be.



Section 5.12 Rights of Series A CP Noteholders to Direct Trustee.




          Majority Series A CP Noteholders may direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee regarding the Series A CP Notes or exercising
any trust or power conferred on the Trustee regarding the Notes.




          Notwithstanding the foregoing and subject to Section 6.01:





	 	(a)	 	the Trustee may decline any direction if the Trustee, after being advised by counsel,
determines that the action so directed is in conflict with any rule of law or with this
Indenture, and
	 
	 	(b)	 	the Trustee may decline any direction if the Trustee in good faith, by a Designated
Officer of the Trustee, determines that the proceedings so directed would be illegal or
involve the Trustee in personal liability or be unjustly prejudicial to Series A CP
Noteholders not parties to that direction.




Section 5.13 Waiver of Past Defaults.




          Prior to the declaration of the acceleration of the maturity of the Series A CP Notes as
provided in Section 5.02 (except in the case of subsection (a)(ii) below), Majority Series A CP
Noteholders may, on behalf of all the Series A CP Noteholders, waive in writing any past default on
the Series A CP Notes and its consequences, except:







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	 	(a)	 	a default in the payment of the principal or interest on any Series A CP Note (which
may be waived only with the consent of all of the Series A CP Noteholders), or
	 
	 	(b)	 	regarding any of the provisions under Section 9.02 that cannot be modified or amended
without the consent of the Series A CP Noteholder of each outstanding Series A CP Note
affected.





          Upon any written waiver, the default shall cease to exist, and any Event of Default arising
from it shall be deemed to have been cured for every purpose of this Indenture. No such waiver
shall extend to any subsequent or other default or impair any right consequent to it.



Section 5.14 Undertaking for Costs.




          All parties to this Indenture agree, and each Series A CP Noteholder by its acceptance of a
Series A CP Note shall be deemed to have agreed, that in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered,
or omitted by it as Trustee, any court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and that the court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any
party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by that party litigant. The provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Series A CP Noteholders (in compliance
with Section 5.07) holding in the aggregate not less than 25% of the principal balance of the
outstanding Series A CP Notes, or to any suit instituted by any Series A CP Noteholder for the
enforcement of the payment of the principal or interest on any Series A CP Note on or after the
Payment Date on which the principal or interest was due (or, in the case of redemption, on or after
the applicable redemption date).



Section 5.15 Waiver of Stay or Extension Laws.




          The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, that may adversely
affect the covenants or the performance of this Indenture. The Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay, or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



Section 5.16 Sale of Trust Assets.





	 	(a)	 	The method, manner, time, place, and terms of any sale of all or any portion of the
Collateral pursuant to Section 5.04 shall be commercially reasonable. Any sale of the
Collateral by the Trustee shall be deemed to have been commercially reasonable. The
Trustee may from time to time postpone any sale by public announcement made at the time and
place of the sale.




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	 	(b)	 	In any sale of all or any portion of the Collateral pursuant to Section 5.04, any
Series A CP Noteholder may bid for and purchase the property offered for sale, and upon
compliance with the terms of the sale may hold, retain, and possess and dispose of the
property, without further accountability, and may, in paying the purchase money for the
property, deliver any outstanding Series A CP Notes or claims for interest on the Series A
CP Notes in lieu of cash up to the amount that shall, upon distribution of the net proceeds
of the sale, be payable thereon, and those Series A CP Notes, if the amounts so payable are
less than the amount due on the Notes, and such Series A CP Notes shall be returned to the
Series A CP Noteholder after being appropriately stamped to show partial payment.
	 
	 	(c)	 	The Trustee may bid for and acquire any portion of the Collateral securing the Series A
CP Notes in a public sale, and may pay all or part of the purchase price by crediting
against amounts owing to the Trustee under this Indenture, including, without limitation,
the costs, charges and expenses incurred by the Trustee in connection with the sale
notwithstanding the provisions of Section 6.07.
	 
	 	(d)	 	The Trustee shall execute and deliver an appropriate instrument of conveyance
transferring its interest in any portion of the Collateral upon its sale. In addition, the
Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to
transfer and convey its interest in any portion of the Collateral upon its sale, and to
take all action necessary to effect its sale. No purchaser or transferee of any portion of
the Issuer’s interest in the Collateral shall be bound to ascertain the Trustee’s
authority, inquire into the satisfaction of any conditions precedent, or see to the
application of any monies.




Section 5.17 Action on Notes.




          The Trustee’s right to seek and recover judgment on the Series A CP Notes or under this
Indenture shall not be affected by the seeking or obtaining of or application for any other relief
under this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Trustee
or the Series A CP Noteholders shall be impaired by the recovery of any judgment by the Trustee
against the Issuer or by the levy of any execution under that judgment upon any portion of the
Trust Assets or upon any of the assets of the Issuer. Any money or property collected by the
Trustee shall be applied as specified in Section 5.04 of this Indenture.



Section 5.18 Limited Rights of Certain Series A CP Noteholders.




          Neither the Issuer or any Affiliate thereof as Holders of any Series A CP Notes issued
pursuant to this Indenture related thereto shall have any rights to direct the Trustee to take any
action in respect of the Series A CP Notes pursuant to this Indenture.







36









 








Article VI.




THE TRUSTEE


Section 6.01 Duties of Trustee.





	 	(a)	 	If an Event of Default has occurred and is continuing and the Trustee has actual
knowledge or written notice of that Event of Default, the Trustee shall, before receiving
directions from Majority Series A CP Noteholders, exercise the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of his own
affairs.
	 
	 	(b)	 	The Trustee undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee. In the absence of willful misconduct or negligence on
its part, the Trustee may conclusively rely (as to their truth and correctness) and shall
be fully protected in relying upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture.
	 
	 	(c)	 	The Trustee, upon receipt of any resolutions, certificates, statements, opinions,
reports, documents, orders; or other instruments furnished to the Trustee that are
specifically required to be furnished pursuant to any provision of this Indenture, shall
review them to determine whether they substantially conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
	 
	 	(d)	 	No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:






(i) this subsection shall not be construed to limit the effect of subsection (b) of
this Section;




(ii) the Trustee shall not be liable for any error of judgment made in good faith by
a Designated Officer of the Trustee unless the Trustee was negligent in ascertaining
the pertinent facts; and




(iii) the Trustee shall not be liable for any action taken, suffered or omitted to
be taken by it in good faith in accordance with this Indenture or at the direction of
Majority Series A CP Noteholders relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or for exercising any trust or
power conferred upon the Trustee, under this Indenture. The Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in good faith at
the direction of the Issuer.




	 	(e)	 	No provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
under this




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	 	 	 	Indenture or in the exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of its funds or indemnity satisfactory to it against any risk or
liability is not reasonably assured to it.
	 
	 	(f)	 	Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (d) and (e) of this Section.
	 
	 	(g)	 	The Trustee shall have no power to vary the Collateral, including (i) accepting any
substitute Collateral, (ii) adding any other investment, obligation, or security to the
Collateral or (iii) withdrawing investments from the Collateral.
	 
	 	(h)	 	The Trustee shall have no responsibility or liability for investment losses on the
Collateral.
	 
	 	(i)	 	For all purposes under this Indenture, the Trustee shall not be deemed to have notice
or knowledge of any Event of Default unless a Designated Officer of the Trustee has actual
knowledge of the event or has received written notice of it. For the purposes of
determining the Trustee’s responsibility and liability under this Indenture, any reference
to an Event of Default shall be construed to refer only to such event of which the Trustee
is deemed to have notice as described in this subsection.




Section 6.02 Notice of Event of Default.




          Upon the occurrence of any Event of Default of which a Designated Officer of the Trustee has
actual knowledge or has received written notice, the Trustee shall transmit by mail notice of the
occurrence of the event to all Series A CP Noteholders as their names and addresses appear on the
Series A CP Note Register within 5 days after it receives written notice or obtains actual
knowledge of the event.



Section 6.03 Rights of Trustee.





	 	(a)	 	The Trustee may conclusively rely and shall fully be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other document reasonably
believed by it to be genuine and to have been signed or presented by the proper party or
parties;
	 
	 	(b)	 	Whenever in the administration of this Indenture the Trustee deems it desirable that a
matter be proved or established prior to taking, suffering or omitting any action, the
Trustee (unless other evidence is specifically prescribed) may, in the absence of willful
misconduct on its part, conclusively rely upon an Officer’s Certificate of the Issuer;
	 
	 	(c)	 	As a condition to the taking, suffering or omitting of any action by it, the Trustee
may consult with counsel, and the advice of counsel or any opinion of counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or
omitted by it in good faith and in reliance thereon;




38









 












	 	(d)	 	The Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture or to honor the request or direction of any of the Series A CP
Noteholders pursuant to this Indenture, unless the Series A CP Noteholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in compliance with the request
or direction;
	 
	 	(e)	 	The Trustee shall not be bound to make any investigation into the matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other document, but the Trustee, in its
discretion, may make any further inquiry or investigation into those matters that it deems
appropriate, and, if the Trustee determines to inquire further, it shall be entitled to
examine the books, records and premises of the Issuer, personally or by agent or attorney
at the expense of the Issuer and shall incur no liability of any kind by reason of such
inquiry or investigation;
	 
	 	(f)	 	The Trustee may execute any of the trusts or powers under this Indenture or perform any
duties under this Indenture either directly or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for (i) any misconduct or negligence on
the part of any agent, attorney, custodians or nominees appointed with due care by it or
(ii) the supervision of those agents, attorneys, custodians or nominees appointed with due
care;
	 
	 	(g)	 	The Trustee shall not be liable for any actions taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion or rights conferred
upon the Trustee by this Indenture;
	 
	 	(h)	 	The Trustee shall not be liable for any actions taken, suffered or omitted by it in good
faith based upon instructions or notices contemplated in this Indenture which the Trustee
reasonably believed in good faith to have been given by an Authorized Representative; and
	 
	 	(i)	 	The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.
	 
	 	(j)	 	The Bank of New York Mellon, in whatever capacity acting, shall have no liability
whatsoever for the action or inaction of any Clearing Agency.
	 
	 	(k)	 	Trustee is authorized to utilize any generally recognized pricing information service
(including brokers and dealers of securities) or may rely on prices provided by the
Securities Intermediary in order to perform its valuation responsibilities hereunder, and
the parties hereto agree that Trustee shall not be liable for any loss, damage or expense
(including attorney’s fees) incurred as a result of errors or omissions of any such pricing
information service, broker or dealer, or in any prices provided by the Securities
Intermediary.




39









 










Section 6.04 Not Responsible for Recitals or Issuance of Notes.




          The recitals contained in this Indenture and in the Notes, except the certificate of
authentication of the Trustee, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, the Notes, or any related document. The Trustee shall
not be accountable for the use or application by the Issuer of the proceeds from the Notes.



Section 6.05 May Hold Notes.




          The Trustee, any Paying Agent, any Transfer Agent and Registrar, or any other agent of the
Issuer, in its individual or any other capacity, may become the owner or pledgee of Series A CP
Notes and may otherwise deal with the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Transfer Agent and Registrar, or other agent.



Section 6.06 Money Held in Trust.




          Any money held by the Trustee in trust under this Indenture need not be segregated from any
other funds held by the Trustee in trust under this Indenture except to the extent required by this
Indenture. The Trustee shall be under no liability for interest on any money received by it under
this Indenture except as otherwise agreed upon in writing by the Trustee.



Section 6.07 Compensation, Reimbursement and Indemnification.





	 	(a)	 	The Issuer agrees:






(i) to pay the Trustee the Trustee fees set forth in the Trustee Fee Letter;




(ii) except as otherwise expressly provided in this Indenture, to reimburse the
Trustee upon its request, and in accordance with the Trustee Fee Letter, for all
expenses, disbursements, and advances incurred or made by the Trustee pursuant to this
Indenture (including all costs and expenses incurred by the Trustee exercising any
remedies under this Indenture and the reasonable compensation and the expenses and
disbursements of its agents and counsel, except any such expense, disbursement, or
advance that shall be determined to have been caused by its negligence or willful
misconduct); and




(iii) to indemnify the Trustee, its officers, directors, employees, and agents
against any loss, liability, expense, damage, or injury suffered or sustained without
negligence or willful misconduct on its part, arising in connection with the acceptance
or administration of this trust, including the costs and expenses of defending itself
against any claim or liability from the exercise or performance of any of its powers or
duties under this Indenture.




	 	(b)	 	The Trustee hereby agrees not to cause the filing of a petition in bankruptcy against
the Issuer for the non-payment to the Trustee of any amounts provided by this Section until
at least one year and one day after the payment in full of all the Series A CP Notes issued
under this Indenture.




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	 	(c)	 	When the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(a)(v) or Section 5.01(a)(vi), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
	 
	 	(d)	 	The provisions of this Section shall survive the termination of this Indenture.




Section 6.08 Replacement of Trustee.




          No resignation or removal of the Trustee and no appointment of a successor Trustee shall
become effective until the acceptance of appointment by the successor Trustee pursuant to this
Section. The Trustee may resign at any time upon 60 days’ written notice to the Issuer. Majority
Series A CP Noteholders may remove the Trustee with or without cause by so notifying the Trustee
and may appoint a successor Trustee. The Issuer shall remove the Trustee if:





(i) the Trustee fails to satisfy Section 6.11;




(ii) the Trustee is adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer takes charge of the
Trustee or its property or its affairs for the purpose of rehabilitation, conservation,
or liquidation; or




(iii) the Trustee otherwise becomes legally unable to act.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to as the retiring Trustee), the Issuer shall
promptly appoint a successor Trustee satisfactory to the Series A CP Noteholders.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers, and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its succession to the Series A
CP Noteholders. The retiring Trustee, upon payment of its charges hereunder, shall promptly
transfer all property held by it as Trustee to the successor Trustee.




          If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Issuer), the Issuer or Majority Series A
CP Noteholders may petition any court of competent jurisdiction for the appointment of a successor
Trustee.




          If the Trustee fails to satisfy Section 6.11, any Series A CP Noteholder may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.




          Notwithstanding the replacement of the Trustee pursuant to this Section, the Issuer’s
obligations under Section 6.07 shall continue for the benefit of the removed or retiring Trustee.







41









 







Section 6.09 Successor Trustee by Merger.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking association, the
resulting, surviving, or transferee corporation or banking association without any further act
shall be the successor Trustee if that corporation or banking association is otherwise qualified
and eligible under Section 6.11. The Trustee shall provide the Issuer and all Series A CP
Noteholders prior written notice of any such transaction.




          If any Series A CP Notes have been authenticated but not delivered at the time a successor to
the Trustee by merger, conversion, consolidation, or transfer succeeds to the trusts created by
this Indenture, the successor to the Trustee may adopt the certificate of authentication of the
predecessor Trustee and deliver the Series A CP Notes so authenticated.




          Any successor to the Trustee may authenticate Series A CP Notes in the name of the successor
Trustee and those certificates of authentication shall have the full force that it is anywhere
provided in the Series A CP Notes or in this Indenture that certificates of authentication of the
Trustee shall have.



Section 6.10 Appointment of Co-Trustee or Separate Trustee.





	 	(a)	 	Notwithstanding any other provisions of this Indenture, at any time, for the purpose of
meeting any legal requirement of any jurisdiction in which any part of the Collateral may
at the time be located, the Trustee may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of any part of the Collateral, and to vest in those Persons, in such capacity and
for the benefit of the Series A CP Noteholders, title to any part of the Collateral and,
subject to the other provisions of this Section, the powers, duties, obligations, rights
and trusts as the Trustee may consider necessary or desirable. No co-trustee or separate
trustee under this Indenture shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Series A CP Noteholders of the
appointment of any co-trustee or separate trustee shall be required under Section 6.08.
	 
	 	(b)	 	Every separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:






(i) all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the Trustee
and the separate trustee or co-trustee jointly (the separate trustee or co-trustee is
not authorized to act separately without the Trustee joining in the act), except to the
extent that under any law of any jurisdiction in which any particular acts are to be
performed the Trustee is incompetent or unqualified to act, in which event the rights,
powers, duties, and obligations shall be performed singly by the separate trustee or
co-trustee, but solely at the direction of the Trustee;




(ii) no trustee under this Indenture shall be personally liable by reason of any act
or omission of any other trustee; under this Indenture; and



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(iii) the Trustee may at any time accept the resignation of or remove any separate
trustee or co-trustee.




	 	(c)	 	Any notice, request, or other writing given to the Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Indenture and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every instrument of
appointment shall be filed with the Trustee.
	 
	 	(d)	 	Any separate trustee or co-trustee may at any time constitute the Trustee its agent or
attorney-in-fact with full power and authority to do any lawful act under this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign, or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Trustee, without the appointment
of a new or successor trustee.




Section 6.11 Eligibility; Disqualification.




          The Trustee shall have a combined capital and surplus of at least $500,000,000 as set forth in
its most recently filed report of condition.



Section 6.12 Representations and Covenants of Trustee.




          The Trustee represents, warrants and covenants that:





(i) it is a banking corporation duly organized and validly existing
under the laws of the State of New York;




(ii) it has full power and authority to deliver and perform this
Indenture and has taken all necessary action to authorize the execution,
delivery, and performance by it of this Indenture and the Collateral Account
Control Agreement; and




(iii) each of this Indenture and the Collateral Account Control
Agreement has been duly executed and delivered by the Trustee and constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditor’s
rights generally and subject also to the availability of equitable remedies if
equitable remedies are sought.



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Section 6.13 Trustee as Paying Agent, Registrar and Authenticating Agent.




          Where the Trustee shall act in the capacity of Paying Agent, Registrar, Authenticating Agent
and issuing agent (collectively, the “Agent Capacity”), neither the Trustee nor its officers,
employees or agents shall be liable for any act or omission thereunder, except in the case of a
judicial determination of its own gross negligence or willful misconduct as described in Section
6.14 in this Indenture. The duties and obligations of the Trustee in its Agent Capacity and those
of its officers and employees shall be determined by the express provisions of this Indenture, and
the Trustee and its officers, employees and agents shall be responsible for the performance of only
such duties and obligations as are specifically set forth herein and therein, and no implied
covenants shall be read into any such document against the Trustee or its officers, employees or
agents. Neither the Trustee or its officers, employees or agents shall be required to ascertain
whether any issuance or sale of Series A CP Note(s) (or any amendment or termination of this
Indenture) has been duly authorized or is in compliance with any other agreement, ordinance,
resolution or other undertaking or document to which the Issuer is a party or by which it or its
property may be bound (whether or not the Trustee is a party to such other agreement).



Section 6.14 Liability in Agent Capacity.




          The Issuer hereby indemnifies and holds the Trustee in its Agent Capacity, and its employees
and any of its officers and agents harmless, from and against, and the Trustee in its Agent
Capacity shall not be liable for, any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs and expenses of any nature
(including, without limitation, interest and reasonable attorneys’ fees, expenses, and the
allocable costs of in-house legal services) arising out of or resulting from the exercise of its
rights and/or the performance of its duties (or those of its agents and employees) hereunder;
provided, however, that the Issuer shall not be liable to indemnify or pay you with respect to any
loss, liability, action, suit, judgment, demand, damage, cost or expense that shall be determined
to have been caused by your own gross negligence or willful misconduct or that of your officers or
employees. The foregoing indemnity includes, but is not limited to, any action taken or omitted to
be taken by the Trustee in its Agent Capacity upon electronically transmitted instructions
(authorized herein) received by it from, or believed by it in good faith to have been given by, the
proper person or persons. The provisions of this Section 6.14 shall survive (i) the Trustee’s
resignation or removal in its Agent Capacity and (ii) the termination of this Indenture.




          In no event shall the Trustee, whether as Trustee or in its Agent Capacity be responsible or
liable for special, indirect, or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.







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Article VII.




SERIES A CP NOTEHOLDERS’ LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER


Section 7.01 Issuer to Furnish Trustee Names and Addresses of Series A CP Noteholders.




          Within five days after each Record Date, the Transfer Agent and Registrar, at the direction of
the Issuer, will cause to be furnished to the Trustee a list, in such form as the Trustee may
reasonably require, of the names, addresses and taxpayer identification numbers of the Series A CP
Noteholders as they appear on the Series A CP Note Register as of that Record Date. At any other
time the Trustee may request the Issuer to furnish, on ten days’ written notice, a list of similar
form and content as of a date not more than 10 days prior to the time the list is furnished. So
long as the Trustee is the Transfer Agent and Registrar, the Issuer shall not be required to
furnish such lists and the Trustee shall furnish to the Issuer such list upon ten days’ written
request.



Section 7.02 Preservation of Information; Communications to Series A CP Noteholders.





	 	(a)	 	The Trustee shall preserve, in as current a form as is reasonably practicable, the
names, addresses and taxpayer identification numbers of the Series A CP Noteholders
contained in the most recent list furnished to the Trustee under Section 7.01 and the
names, addresses and taxpayer identification numbers of the Series A CP Noteholders
received by the Trustee in its capacity as Transfer Agent and Registrar. The Trustee may
destroy any list furnished to it under Section 7.01 upon receipt of a new list so
furnished.
	 
	 	(b)	 	If any Series A CP Noteholder applies in writing to the Trustee stating that it desires
to communicate with other Series A CP Noteholders regarding their rights under this
Indenture or under the Notes, then the Trustee shall, within five Business Days after the
receipt of the application, afford that Series A CP Noteholder access to the information
preserved at the time by the Trustee in accordance with subsection (a) of this Section.
	 
	 	(c)	 	If any Owner applies in writing to the Trustee stating that it desires to communicate
with other Owners regarding their rights under this Indenture or under the Notes, then the
Trustee shall, within five Business Days after the receipt of the application, afford that
Owner access to the information preserved at the time by the Trustee in accordance with
subsection (a) of this Section; provided, however, that in the case of a person claiming to
be an Owner requesting such information, the Trustee shall not furnish such information
until the Issuer shall have authorized release of such information and the Trustee shall
have no liability for such release or the identity of the requesting person




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Article VIII.




ACCOUNTS, ACCOUNTING AND RELEASES


Section 8.01 Collection of Money.




          Except as otherwise expressly provided in this Indenture, the Trustee may demand payment or
delivery of, and receive and collect, directly and without intervention or assistance of any fiscal
agent or other intermediary, all money and other property payable to or receivable by the Trustee
pursuant to this Indenture. The Trustee shall hold all such money and property received by it in
trust for the Series A CP Noteholders and shall apply such property and money as provided in this
Indenture.



Section 8.02 Distributions.




          On each Payment Date, the Trustee shall, in accordance with Section 2.15 of this Indenture,
distribute to the Series A CP Noteholders payments due thereunder.



Section 8.03 Release of Trust Assets, Etc..





	 	(a)	 	Subject to the payment of its fees and expenses, the Trustee, when required by the
Basic Documents shall, execute instruments to release property from the Lien of this
Indenture, or convey the Trustee’s interest in the same. No party relying upon an
instrument executed by the Trustee as provided in this Article shall be bound to ascertain
the Trustee’s authority, inquire into the satisfaction of any conditions precedent or see
to the application of any monies.
	 
	 	(b)	 	Upon written direction of an Authorized Representative of the Issuer, the Trustee
shall, at such time as there are no Series A CP Notes outstanding, release and transfer,
without recourse, all of the Collateral that secured the Series A CP Notes (other than any
cash held for the payment of the Series A CP Notes pursuant to Section 4.02).




Section 8.05 Establishment of Note Account.




          The Trustee, for the benefit of the Series A CP Noteholders, shall establish and maintain with
a separate segregated trust account (the “Note Account”), bearing a designation clearly indicating
that the funds therein are held for the benefit of the Series A CP Noteholders.




Article IX.




SUPPLEMENTAL INDENTURES


Section 9.01 Supplemental Indentures Without Consent of Series A CP Noteholders.





	 	(a)	 	The Issuer and the Trustee, when authorized by a written direction of an Authorized
Representative of the Issuer, may enter into one or more indentures supplemental to this
Indenture, in form satisfactory to the Trustee, for any of the following purposes:






46












 






(i) to correct or amplify the description of any property subject to the Lien of
this Indenture, or better to assure, convey and confirm to the Trustee any property
required to be subjected to the Lien of this Indenture, or to subject to the Lien of
this Indenture additional property;




(ii) to evidence the succession, in compliance with Section 3.06, of another Person
to the Issuer, and the assumption by the successor of the covenants of the Issuer
herein and in the Series A CP Notes;




(iii) to add to the covenants of the Issuer, for the benefit of the Series A CP
Noteholders, or to surrender any right or power herein conferred upon the Issuer;




(iv) to convey, transfer, assign, mortgage or pledge any property to or with the
Trustee;




(v) to cure any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein or in
any supplemental indenture, or to make any other provisions with respect to matters
arising under this Indenture or in any supplemental indenture so long as the interests
of any Series A CP Noteholder are not adversely affected; or




(vi) to evidence the acceptance of the appointment under this Indenture of a
successor trustee and to add to or change any of the provisions of this Indenture
necessary to facilitate the administration of the trusts under this Indenture by more
than one trustee, pursuant to the requirements of Article VI.


The Trustee is authorized to join in the execution of any such supplemental indenture and to make
any further appropriate agreements and stipulations that may be therein contained.





	 	(b)	 	The Issuer and the Trustee, when authorized by a written direction of an Authorized
Representative of the Issuer, may also enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any manner the
rights of the Series A CP Noteholders under this Indenture; provided that such
action will not, as evidenced by an Opinion of Counsel of the Issuer, delivered and
acceptable to the Trustee, adversely affect in any material respect the interests of any
Series A CP Noteholder.




Section 9.02 Supplemental Indentures with Consent of Series A CP Noteholders.




          The Issuer and the Trustee, when authorized by a written direction of an Authorized
Representative of the Issuer, also may, with the consent of a Majority of Series A CP Noteholders,
by an Act of the Series A CP Noteholders delivered to the Issuer and the Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to, changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner
the rights of those Series A CP Noteholders under this Indenture. However, no such supplemental
indenture shall, without the consent of each Series A CP Noteholder affected thereby:







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(i) change the due date of any installment of principal of or interest on any
Series A CP Note, or reduce the principal amount of any Series A CP Note, the interest
rate on any Series A CP Note or the redemption price of any Series A CP Note or change
any place of payment where, or the coin or currency in which, any Series A CP Note or
any interest on it is payable;




(ii) impair the right to institute suit for the enforcement of the provisions of
this Indenture requiring the application of funds, as provided in Article V, to the
payment of any amount due on the Series A CP Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the redemption date);




(iii) reduce the percentage that constitutes “Majority Series A CP Noteholders” or
the consent requirements of the Holders which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults hereunder and
their consequences as provided for in this Indenture;




(iv) reduce the percentage of the aggregate outstanding amount of any Notes, the
consent of the Holders of which is required to direct the Trustee to sell or liquidate
the Collateral if the proceeds of such sale would be insufficient to pay the principal
amount and accrued but unpaid interest on the outstanding Notes;




(v) decrease the percentage of the aggregate principal amount of the Series A CP
Notes required to amend the sections of this Indenture that specify the applicable
percentage of the aggregate principal amount of the Series A CP Notes necessary to
amend this Indenture;




(vi) modify or alter the provisions of this Indenture regarding the voting of Series
A CP Notes held by the Issuer or any Affiliate thereof;




(vii) permit the creation of any Lien ranking prior to or on a parity with the Lien
of this Indenture on any part of the Collateral for any Series A CP Notes or, except as
otherwise permitted or contemplated herein, terminate the Lien of this Indenture on any
Collateral assets or deprive any Series A CP Noteholder of the security provided by the
Lien of this Indenture; or




(vi) to provide for the termination or replacement of any external credit
enhancement in accordance with the provisions hereto.



          Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to this Section, the Trustee shall mail to the Series A CP Noteholders to which that
supplemental indenture relates written notice provided to the Trustee by the Issuer setting forth
in general terms the substance of that supplemental indenture. The failure of the Trustee to mail
any such notice, or any defect therein, shall not in any way impair or affect the validity of that
supplemental indenture.







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Section 9.03 Execution of Supplemental Indentures.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall be provided with, and (subject to Sections 6.01 and 6.03) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any supplemental indenture that affects the Trustee’s own rights, duties, liabilities or
immunities under this Indenture or otherwise.



Section 9.04 Effect of Supplemental Indenture.




          Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and that supplemental indenture shall form a part of this
Indenture for all purposes, and every Holder of Series A CP Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.



Section 9.05 Reference in Series A CP Notes to Supplemental Indentures.




          Notes authenticated and delivered after the execution of any supplemental indenture pursuant
to this Article may bear a notation in form as to any matter provided for in that supplemental
indenture. If the Issuer so determines, new Series A CP Notes so modified as to conform, in the
opinion of the Issuer, to that supplemental indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Trustee in exchange for outstanding Notes.




Article X.




MISCELLANEOUS


Section 10.01 Form of Documents Delivered to Trustee.




          In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
those matters in one or several documents.




          Any certificate or opinion of an Authorized Representative of the Issuer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such officer’s certificate or
opinion is based are erroneous. Any such certificate of an Authorized Representative or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Issuer or the Issuer, stating that the
information with respect to those factual matters is in the possession of such party, unless such
Authorized Representative or counsel knows, or in the exercise of reasonable






49









 







care should know, that the certificate or opinion or representations with respect to those
matters are erroneous.




          Where any Person is required to make, give, or execute two or more applications, requests,
consents, certificates, statements, opinions, or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.




          Whenever in this Indenture, in connection with any application or certificate or report to the
Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting
of such application, or as evidence of the Issuer’s compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or at the effective
date of that certificate or report (as the case may be), of the facts and opinions stated in that
document shall in such case be conditions precedent to the right of the Issuer to have that
application granted or to the sufficiency of that certificate or report. The foregoing shall not,
however, be construed to affect the Trustee’s right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in Article VI.



Section 10.02 Acts of Series A CP Noteholders.





	 	(a)	 	Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Series A CP Noteholders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by those
Series A CP Noteholders in person or by agent duly appointed in writing and satisfying any
requisite percentages as to minimum number or dollar value of outstanding principal amount
represented by those Series A CP Noteholders. Except as herein otherwise expressly
provided, any such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Series A CP Noteholders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this
Section.
	 
	 	(b)	 	The fact and date of the execution by any Person of any such instrument or writing may
be proved in any manner which the Trustee deems sufficient.
	 
	 	(c)	 	The ownership of Series A CP Notes shall be proved by the Series A CP Note Register.
	 
	 	(d)	 	Any request, demand, authorization, direction, notice, consent, waiver, or other action
by any Series A CP Noteholder shall bind the Holder (and any transferee thereof) of every
Series A CP Note issued upon the registration thereof in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon such Note.




50









 










Section 10.03 Notices, Etc. to Trustee, Issuer and Issuer.





	 	(a)	 	Any request, demand, authorization, direction, notice, consent, waiver, or Act of
Series A CP Noteholders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with:






(i) the Trustee by any Series A CP Noteholder or by the Issuer shall be sufficient
for every purpose hereunder (x) if in writing and mailed, first-class postage prepaid,
to the address set forth below or (y) if made, given, furnished or filed in writing to
a Designated Officer of the Trustee, by facsimile transmission or by other electronic
means acceptable to the Trustee to or with the Trustee at


The Bank of New York Mellon

101 Barclay Street, Floor 7 West

New York, New York 10286

Attention: Corporate Trust Administration



 Dealing and Trading



Facsimile No.: (212) 815-2830





(ii) the Issuer by the Trustee or by any Series A CP Noteholder shall be sufficient
for every purpose hereunder if in writing and mailed, first-class postage prepaid, to
the address set forth below or (y) if made, given, furnished or filed in writing to the
Issuer, by facsimile transmission or by other electronic means acceptable to the Issuer
to or with the Issuer at:


Piper Jaffray & Co.

800 Nicollet Mall, J13S22

Minneapolis, MN 55402-7020

Attn: Treasury Department

Telephone: (612) 303-6805

Facsimile: (612) 303-1316



, or at any other address previously furnished in writing to the Trustee by the Issuer.



Section 10.04 Notices to Series A CP Noteholders; Waiver.




          Where this Indenture provides for notice to Series A CP Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed
by registered or certified mail or first class postage prepaid or national overnight courier
service to each Series A CP Noteholder affected by such event, at the address of that Series A CP
Noteholder as it appears on the Series A CP Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any case where notice
to Series A CP Noteholders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Series A CP Noteholder shall affect the
sufficiency of such notice with respect to other Series A CP Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have been duly given.







51









 








          Where this Indenture provides for notice in any manner, that notice may be waived in writing
by any Person entitled to receive such notice, before the event, and any such waiver shall be the
equivalent of that notice.




          If because of the suspension of regular mail service, it is impractical to mail notice of any
event to Series A CP Noteholders when that notice is required to be given, then any manner of
giving that notice that is satisfactory to the Trustee shall be deemed to be a sufficient giving of
that notice.




          The Issuer shall give prompt written notice to each Series A CP Noteholder of any of the
following occurrences: (a) the appointment of a successor Trustee and (b) the execution of a
supplemental indenture pursuant to Article IX.




Section 10.05 Alternate Payment and Notice Provisions.



          Notwithstanding any provision of this Indenture or any of the Series A CP Notes to the
contrary, the Issuer, with the consent of the Trustee, may enter into any agreement with any Series
A CP Noteholder providing for a method of payment, or notice by the Trustee or any Paying Agent to
that Series A CP Noteholder, that is different from the methods provided for in this Indenture for
payments or notices. The Issuer will furnish to the Trustee a copy of each such agreement and the
Trustee will cause payments to be made and notices to be given in accordance with those agreements.



Section 10.06 Effect of Headings and Table of Contents.




          The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



Section 10.07 Successors and Assigns.




          All covenants and agreements in this Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.



Section 10.08 Separability.




          If any provision in this Indenture or in the Series A CP Notes is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



Section 10.09 Benefits of Indenture.




          Except as set forth in Section 10.13, nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their successors hereunder,
and the Series A CP Noteholders, any benefit.







52









 







Section 10.10 Legal Holidays.




          In any case where the date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Series A CP Notes or this Indenture) payment need not
be made on that date, but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall accrue for the period
from and after any such nominal date.



Section 10.11 Governing Law.




          THIS INDENTURE AND EACH SERIES A CP NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS-OF-LAW PRINCIPLES THEREOF, OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED THEREIN.




          EACH OF THE ISSUER AND THE TRUSTEE HEREBY CONSENT TO THE JURISDICTION OF A STATE OR FEDERAL
COURT SITUATED IN NEW YORK, NEW YORK IN CONNECTION WITH ANY SUIT HEREUNDER.




          EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.



Section 10.12 Counterparts.




          This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



Section 10.13 Issuer Obligation.




          No recourse may be taken, directly or indirectly, with respect to the obligations of the
Issuer on the Series A CP Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) any owner of a membership or other
equity interest in the Issuer or (iii) any manager, partner, owner, beneficiary, agent, officer,
director, employee or agent of the Issuer, or of any holder of a membership or other equity
interest in the Issuer.



Section 10.14 No Petition.




          The Trustee, by entering into this Indenture, and each Series A CP Noteholder, by accepting a
Note, hereby covenant that they will not at any time institute against the Issuer, or join in any
institution against the Issuer, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or






53









 







state bankruptcy or similar law in connection with any obligations relating to the Notes, this
Indenture, until at least one year and one day after the payment in full of all Series A CP Notes
issued under this Indenture.



Section 10.15 Force Majeure.




          In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.







54









 








          IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Indenture to be duly executed
by their respective officers thereunto duly authorized, all as of the day and year first above
written.




	 	 	 	 	 
	 	





PIPER JAFFRAY & CO., Issuer

 	 
	 	By:  	/s/ Timothy L. Carter/Mary B. Swanson
 	 
	 	 	Printed Name:  	Timothy L. Carter/Mary B. Swanson 	 
	 	 	Title:  	Treasurer/Assistant Treasurer 	 
	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	/s/ Maryann Joseph
 	 
	 	 	Printed Name:  	 Maryann Joseph 	 
	 	 	Title:  	Vice President 	 
	 




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